Amendment to 1. 01. A new definition is hereby added to Section 1.01 of the Existing Agreement in the appropriate alphabetical order and shall read as follows:
Amendment to 1. 01. The following is hereby added as a new defined term in Section 1.01 of the Operating Agreement:
Amendment to 1. (a) The second sentence of the definition of the term "EBITDA" appearing in Section 1 of the Credit Agreement is hereby amended in its entirety to read as follows: "For the purpose of calculating the Fixed Charge Coverage Ratio only, (x) any operating income from any Real Estate owned by the Borrower or any of its Subsidiaries which is encumbered by a Non-Recourse Mortgage as to which no default exists at the time that the Fixed Charge Coverage Ratio is being determined and which is Cash Flow Positive for the fiscal period as to which the Fixed Charge Coverage Ratio is being determined shall be excluded from the calculation of "EBITDA" up to and including the amount necessary to satisfy the corresponding debt service for the relevant period in respect of the Indebtedness incurred by the Borrower or such Subsidiary which is secured by such Non-Recourse Mortgage (including all principal and interest) and (y) any write-off of inventory up to an amount equal to $400,000 for the fiscal quarter ending June 1, 2002, up to an amount equal to $930,000 for the fiscal quarter ended August 31, 2002 and up to an amount equal to $70,000 for the fiscal quarter ended December 1, 2002 shall be excluded from the calculation of "EBITDA" so long as the Occupancy Condition is being met.
Amendment to 1. 5. Effective as of the Effective Date, Section 1.5 of the Loan Agreement is hereby deleted in its entirety and the following is inserted in lieu thereof: “‘Availability Reserves’ shall mean, as of any date of determination, such amounts as Lender may from time to time establish and revise in good faith reducing me amount of Revolving Loans and Letter of Credit Accommodations which would otherwise be available to Borrower under the lending formula(s) 3rd amendment to lsa provided for herein: (a) to reflect events, conditions, contingencies or risks which, as determined by Lender in good faith, do or may affect either (i) the Collateral or any other property which is security for the Obligations or its value, (ii) the assets, business or prospects of Borrower or any Obligor or (iii) the security interests and other rights of Lender in the Collateral (including the enforceability, perfection and priority thereof) or (b) to reflect Lender’s good faith belief that any collateral report or financial information furnished by or on behalf of Borrower or any Obligor to Lender is or may have been incomplete, inaccurate or misleading in any material respect or (c) to reflect outstanding Letter of Credit Accommodations as provided in Section 2.2 hereof or (d) in respect of any state of facts which Lender determines in good faith constitutes an Event of Default or may, with notice or passage of time or both, constitute an Event of Default. Without limiting the foregoing, (i) Lender may establish Availability Reserves with respect to Borrower’s personal property taxes relating to any property located in the state of Texas immediately upon Borrower’s receipt of a notice from the taxing authority that such taxes are payable and until Lender receives verification, satisfactory to it that such taxes have been paid in full, (ii) the Availability Reserves established by Lender as of the date hereof set forth on Schedule 1.5 and (iii) Lender may establish Availability Reserves with respect to dilution of Borrower’s Accounts in excess of five percent (5%) (as determined by Lender in its discretion).”
Amendment to 1. 3. Effective as of the Effective Date, Section 1.3 of the Loan Agreement is hereby deleted in its entirety and the following is inserted in lieu thereof:
Amendment to 1. 1. Section 1.1 of the LLC Agreement is amended by adding the following terms in their alphabetically correct place:
