“Capital
Stock” means, with
respect to any Person, any capital stock, including preferred
stock, shares, interests, participations or other ownership
interests, however designated, of any Person and any rights, other
than debt securities convertible into or exchangeable for corporate
stock, warrants or options.
“Consolidated
Income Available for Debt Service” for any period means Earnings from
Operations, as defined below, of the Company and its Subsidiaries,
plus amounts which have been deducted, and minus amounts which have
been added, for the following, without duplication:
•
interest on Indebtedness of the
Company and its Subsidiaries;
•
provision for taxes of the
Company and its Subsidiaries based on income;
•
amortization of debt discount
and other deferred financing costs;
•
provisions for gains and losses
on properties and property depreciation and
amortization;
•
the effect of any noncash
charge resulting from a change in accounting principles in
determining Earnings from Operations for that period;
and
•
amortization of deferred
charges.
“Disqualified
Stock” means, with
respect to any Person, any Capital Stock of that Person which by
the terms of that Capital Stock, or by the terms of any security
into which it is convertible or for which it is exchangeable or
exercisable, upon the happening of any event or
otherwise:
•
matures or is mandatorily
redeemable, other than Capital Stock which is redeemable solely in
exchange for common stock;
•
is convertible into or
exchangeable or exercisable for Indebtedness or Disqualified Stock;
or
•
is redeemable at the option of
its holder, in whole or in part, other than Capital Stock which is
redeemable solely in exchange for Capital Stock which is not
Disqualified Stock, in each case on or prior to the Stated Maturity
of the notes.
“Earnings
from Operations” means
for any period net earnings excluding gains and losses on sales of
investments, extraordinary items and property valuations losses,
net as reflected in the financial statements of the Company and its
Subsidiaries for any period determined on a consolidated basis in
accordance with GAAP.
“Encumbrance”
means any mortgage, lien,
charge, pledge or security interest of any kind.
“GAAP”
means generally accepted
accounting principles as used in the United States applied on a
consistent basis as in effect from time to time; provided that
solely for purposes of any calculation required by the financial
covenants contained in the Amended and Restated Third Supplemental
Indenture to the 1998 Base Indenture, “GAAP” shall mean generally
accepted accounting principles as used in the United States on the
date of the Amended and Restated Third Supplemental Indenture,
applied on a consistent basis.
“Indebtedness”
of the Company or any
Subsidiary means, without duplication, any indebtedness of the
Company or any Subsidiary, whether or not contingent, in respect
of:
(1)
borrowed money or evidenced by
bonds, notes, debentures or similar instruments;
(2)
indebtedness for borrowed money
secured by any Encumbrance existing on property owned by the
Company or any Subsidiary;
(3)
the reimbursement obligations,
contingent or otherwise, in connection with any letters of credit
actually issued, other than letters of credit issued to provide
credit enhancement or support with respect to other indebtedness of
the Company or any Subsidiary otherwise reflected as Indebtedness
under the 1998 Indenture, or amounts representing the balance
deferred and unpaid of the purchase price of any property or
services, except any balance that constitutes an accrued expense or
trade payable, or all conditional sale obligations or obligations
under any title retention agreement;
(4)
the principal amount of all
obligations of the Company or any Subsidiary with respect to
redemption, repayment or other repurchase of any Disqualified
Stock;
