Common use of Consolidated EBITDAR Clause in Contracts

Consolidated EBITDAR. For any fiscal period of the Borrowers and their Restricted Subsidiaries, an amount equal to the sum of (a) Consolidated EBITDA for such fiscal period (which shall include EBITDA of the businesses acquired by the Borrowers or any of their Restricted Subsidiaries through Permitted Acquisitions or the Australian Acquisition during such fiscal period (each an “Acquired Business”), or the Restricted Subsidiaries acquired or formed during such fiscal period (each a “New Subsidiary”); in each case, on a pro forma basis in an amount such that the actual EBITDA of such Acquired Business or New Subsidiary included in such period plus the amount of pro forma EBITDA of such Acquired Business or New Subsidiary included in such period (the “Pro Forma EBITDA”) equals one year of EBITDA credit; provided that, (i) such calculations shall be made with reference to the audited financial statements of such Acquired Businesses or New Subsidiaries for the most recent fiscal year ended of such Acquired Businesses or New Subsidiaries and any unaudited quarterly statements which have been received since the most recent fiscal year ended of such Acquired Business or New Subsidiaries, or (ii) in the event that there are only unaudited financial results or no financial results available with respect to such Acquired Businesses or New Subsidiaries, such calculations shall be made with reference to other acceptable financial statements or reasonable estimates of such past performance made by the Borrowers based on existing data and other available information, such financial statements or, as the case may be, estimates to be agreed upon by the Borrowers and the Administrative Agent and, to the extent the pro forma financial statements delivered pursuant to §10.5.2(c)(ii) demonstrate a pro forma Funded Debt to EBITDAR Ratio greater than or equal to 2.25 to 1, with respect to Permitted Acquisitions for which the total consideration (other than consideration in the form of Capital Stock of any Borrower or any Restricted Subsidiary) therefor exceeds $125,000,000 (or in the event that the pro forma financial statements delivered pursuant to §10.5.2(c)(ii) demonstrate a pro forma Funded Debt to EBITDAR Ratio less than or equal to 3.00 to 1, $200,000,000), the Required Lenders), plus (b) to the extent deducted in computing Consolidated Net Income, all payments and rental charges made by any of the Borrowers or any of their Restricted Subsidiaries (including any Acquired Business or New Subsidiary) during such fiscal period in respect to operating leases plus (c) expenses for such fiscal period with respect to Permitted Acquisitions or the Australian Acquisition which are (i) discontinued upon the effective date of such Permitted Acquisition or the Australian Acquisition or within sixty days thereof, (ii) approved by the Administrative Agent (which approval shall not be unreasonably withheld) and (iii) otherwise consistent with Regulation S-X plus (d) solely in respect of the Australian Acquisition, pro forma cost savings in an aggregate amount not to exceed $4,500,000 and approved in writing by the Administrative Agent. By way of example only, Pro Forma EBITDA of an Acquired Subsidiary or a New Subsidiary would be determined, at any time during the first four fiscal quarters following a Permitted Acquisition, the Australian Acquisition or the formation of a New Subsidiary, by multiplying (A) the annual pro forma EBITDA of such Person determined at the time of such acquisition or formation by (B) a fraction, the numerator of which equals 365 minus the number of days elapsed from the closing date of such acquisition or formation to the applicable date of determination, and the denominator of which equals 365.

Consolidated EBITDAR. For any fiscal period of the Borrowers and their Restricted Subsidiaries, an amount equal to the sum of (a) Consolidated EBITDA for such fiscal period (which shall include EBITDA of the businesses acquired by the Borrowers or any of their Restricted Subsidiaries through Permitted Acquisitions or the Australian Acquisition during such fiscal period (each an “"Acquired Business”"), including Emons and its Restricted Subsidiaries and Utah Railway Company, or the Restricted Subsidiaries acquired or formed during such fiscal period (each a “"New Subsidiary”"); in each case, on a pro forma basis in an amount such that the actual EBITDA of such Acquired Business or New Subsidiary included in such period plus the amount of pro forma EBITDA of such Acquired Business or New Subsidiary included in such period (the “Pro Forma "ProForma EBITDA”") equals one year of EBITDA credit; provided that, (i) such calculations shall be made with reference to the audited financial statements of such Acquired Businesses or New Subsidiaries for the most recent fiscal year ended of such Acquired Businesses or New Subsidiaries and any unaudited quarterly statements which have been received since the most recent fiscal year ended of such Acquired Business or New Subsidiaries, or (ii) in the event that there are only unaudited financial results or no financial results available with respect to such Acquired Businesses or New Subsidiaries, such calculations shall be made with reference to other acceptable financial statements or reasonable estimates of such past performance made by the Borrowers based on existing data and other available information, such financial statements or, as the case may be, estimates to be agreed upon by the Borrowers and the Administrative Agent and, to the extent the pro forma financial statements delivered pursuant to §10.5.2(c)(ii) demonstrate a pro forma Funded Debt to EBITDAR Ratio greater than or equal to 2.25 to 1, with respect to Permitted Acquisitions for which the total consideration (other than consideration in the form of Capital Stock of any Borrower or any Restricted Subsidiary) therefor exceeds $125,000,000 (or in the event that the pro forma financial statements delivered pursuant to §10.5.2(c)(ii) demonstrate a pro forma Funded Debt to EBITDAR Ratio less than or equal to 3.00 to 1, $200,000,000)25,000,000, the Required Lenders), Lenders plus (b) to the extent deducted in computing Consolidated Net Income, all payments and rental charges made by any of the Borrowers or any of their Restricted Subsidiaries (including any Acquired Business or New Subsidiary) during such fiscal period in respect to operating leases plus (c) expenses for such fiscal period with respect to Permitted Acquisitions or the Australian Acquisition which are (i) discontinued upon the effective date of such Permitted Acquisition or the Australian Acquisition or within sixty days thereof, (ii) approved by the Administrative Agent (which approval shall not be unreasonably withheld) and (iii) otherwise consistent with Regulation S-X plus (d) solely in respect of the Australian Acquisition, pro forma cost savings in an aggregate amount not to exceed $4,500,000 and approved in writing by the Administrative Agent. X. By way of example only, Pro Forma Proforma EBITDA of an Acquired Subsidiary or a New Subsidiary would be determined, at any time during the first four fiscal quarters following a Permitted Acquisition, the Australian Acquisition or the formation of a New Subsidiary, by multiplying (A) the annual pro forma EBITDA of such Person determined at the time of such acquisition or formation by (B) a fraction, the numerator of which equals 365 minus the number of days elapsed from the closing date of such acquisition or formation to the applicable date of determination, and the denominator of which equals 365. For purposes of this definition, (y) with respect to Emons and its Restricted Subsidiaries, the annual pro forma EBITDA determined at the closing of the acquisition thereof is $5,700,000 and the closing date therefor was February 22, 2002 and (z) with respect to Utah Railway Company, the annual pro forma EBITDA determined at the closing of the acquisition thereof is $8,032,000 and the closing date therefor was August 28, 2002.

Consolidated EBITDAR. For any fiscal period of the Borrowers and their Restricted Subsidiaries, an amount equal to the sum of (a) Consolidated EBITDA for such fiscal period (which shall include EBITDA of the businesses acquired by the Borrowers or any of their Restricted Subsidiaries through Permitted Acquisitions or the Australian Acquisition during such fiscal period (each an “"Acquired Business”"), or the Restricted Subsidiaries acquired or formed during such fiscal period (each a “"New Subsidiary”"); in each case, on a pro forma basis in an amount such that the actual EBITDA of such Acquired Business or New Subsidiary included in such period plus the amount of pro forma EBITDA of such Acquired Business or New Subsidiary included in such period (the “Pro Forma "ProForma EBITDA”") equals one year of EBITDA credit; provided that, (i) such calculations shall be made with reference to the audited financial statements of such Acquired Businesses or New Subsidiaries for the most recent fiscal year ended of such Acquired Businesses or New Subsidiaries and any unaudited quarterly statements which have been received since the most recent fiscal year ended of such Acquired Business or New Subsidiaries, or (ii) in the event that there are only unaudited financial results or no financial results available with respect to such Acquired Businesses or New Subsidiaries, such calculations shall be made with reference to other acceptable financial statements or reasonable estimates of such past performance made by the Borrowers based on existing data and other available information, such financial statements or, as the case may be, estimates to be agreed upon by the Borrowers and the Administrative Agent and, to the extent the pro forma financial statements delivered pursuant to §10.5.2(c)(ii) demonstrate a pro forma Funded Debt to EBITDAR Ratio greater than or equal to 2.25 to 1, with respect to Permitted Acquisitions for which the total consideration (other than consideration in the form of Capital Stock of any Borrower or any Restricted Subsidiary) therefor exceeds $125,000,000 (or in the event that the pro forma financial statements delivered pursuant to §10.5.2(c)(ii) demonstrate a pro forma Funded Debt to EBITDAR Ratio less than or equal to 3.00 to 1, $200,000,000)75,000,000, the Required Lenders), ) plus (b) to the extent deducted in computing Consolidated Net Income, all payments and rental charges made by any of the Borrowers or any of their Restricted Subsidiaries (including any Acquired Business or New Subsidiary) during such fiscal period in respect to operating leases plus (c) expenses for such fiscal period with respect to Permitted Acquisitions or the Australian Acquisition which are (i) discontinued upon the effective date of such Permitted Acquisition or the Australian Acquisition or within sixty days thereof, (ii) approved by the Administrative Agent (which approval shall not be unreasonably withheld) and (iii) otherwise consistent with Regulation S-X plus (d) solely in respect of the Australian Acquisition, pro forma cost savings in an aggregate amount not to exceed $4,500,000 and approved in writing by the Administrative Agent. X. By way of example only, Pro Forma ProForma EBITDA of an Acquired Subsidiary or a New Subsidiary would be determined, at any time during the first four fiscal quarters following a Permitted Acquisition, the Australian Acquisition or the formation of a New Subsidiary, by multiplying (A) the annual pro forma EBITDA of such Person determined at the time of such acquisition or formation by (B) a fraction, the numerator of which equals 365 minus the number of days elapsed from the closing date of such acquisition or formation to the applicable date of determination, and the denominator of which equals 365.

Consolidated EBITDAR. For any fiscal period of the Borrowers and their Restricted Subsidiaries, an amount equal to the sum of (a) Consolidated EBITDA for such fiscal period (which shall include EBITDA of the businesses acquired by the Borrowers or any of their Restricted Subsidiaries through Permitted Acquisitions or the Australian Acquisition during such fiscal period (each an “Acquired Business”), or the Restricted Subsidiaries acquired or formed during such fiscal period (each a “New Subsidiary”); in each case, on a pro forma basis in an amount such that the actual EBITDA of such Acquired Business or New Subsidiary included in such period plus the amount of pro forma EBITDA of such Acquired Business or New Subsidiary included in such period (the “Pro Forma EBITDA”) equals one year of EBITDA credit; provided that, (i) such calculations shall be made with reference to the audited financial statements of such Acquired Businesses or New Subsidiaries for the most recent fiscal year ended of such Acquired Businesses or New Subsidiaries and any unaudited quarterly statements which have been received since the most recent fiscal year ended of such Acquired Business or New Subsidiaries, or (ii) in the event that there are only unaudited financial results or no financial results available with respect to such Acquired Businesses or New Subsidiaries, such calculations shall be made with reference to other acceptable financial statements or reasonable estimates of such past performance made by the Borrowers based on existing data and other available information, such financial statements or, as the case may be, estimates to be agreed upon by the Borrowers and the Administrative Agent and, to the extent the pro forma financial statements delivered pursuant to §10.5.2(c)(ii) demonstrate a pro forma Funded Debt to EBITDAR Ratio greater than or equal to 2.25 to 1, with respect to Permitted Acquisitions for which the total consideration (other than consideration in the form of Capital Stock of any Borrower or any Restricted Subsidiary) therefor exceeds $125,000,000 100,000,000 (or in the event that the pro forma financial statements delivered pursuant to §10.5.2(c)(ii10.5.2(ii) demonstrate a pro forma Funded Debt to EBITDAR Ratio less than or equal to 3.00 to 1, $200,000,000150,000,000), the Required Lenders), ) plus (b) to the extent deducted in computing Consolidated Net Income, all payments and rental charges made by any of the Borrowers or any of their Restricted Subsidiaries (including any Acquired Business or New Subsidiary) during such fiscal period in respect to operating leases plus (c) expenses for such fiscal period with respect to Permitted Acquisitions or the Australian Acquisition which are (i) discontinued upon the effective date of such Permitted Acquisition or the Australian Acquisition or within sixty days thereof, (ii) approved by the Administrative Agent (which approval shall not be unreasonably withheld) and (iii) otherwise consistent with Regulation S-X plus (d) solely in respect of the Australian Acquisition, pro forma cost savings in an aggregate amount not to exceed $4,500,000 and approved in writing by the Administrative Agent. X. By way of example only, Pro Forma EBITDA of an Acquired Subsidiary or a New Subsidiary would be determined, at any time during the first four fiscal quarters following a Permitted Acquisition, the Australian Acquisition or the formation of a New Subsidiary, by multiplying (A) the annual pro forma EBITDA of such Person determined at the time of such acquisition or formation by (B) a fraction, the numerator of which equals 365 minus the number of days elapsed from the closing date of such acquisition or formation to the applicable date of determination, and the denominator of which equals 365.