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Appendix Z: DEFINED TERMS
Affiliate
Asset Disposition
Attributable Debt (2 alternatives)
Business Day
Capital Lease
Capital Lease Obligation
Change in Control
Code
Company
Consolidated Assets
Consolidated Cash Flow
Consolidated Current Assets (2 alternatives)
Consolidated Current Debt
Consolidated Current Liabilities (3 alternatives)
Consolidated Debt
Consolidated Funded Debt
Consolidated Income Available for Fixed Charges
Consolidated Income Available for Interest Charges
Consolidated Net Income (2 alternatives)
Consolidated Net Worth (6 alternatives)
Consolidated Operating Cash Flow
Consolidated Tangible Net Worth
Consolidated Total Capitalization
Control Event
Current Debt (2 alternatives)
Current Maturities of Funded Debt
Debt
Debt Prepayment Application (3 alternatives)
Debt Service
Debt Service Coverage Ratio
Default
Disposition Value
Distribution
ERISA
Event of Default
Exchange Act
Fair Market Value
Fixed Charges (2 alternatives)
Fixed Charges Coverage Ratio (2 alternatives)
Funded Debt (2 alternatives)
GAAP
Guaranty
Indebtedness
Interest Charges (2 alternatives)
Interest Charges Coverage Ratio (2 alternatives)
Investment
Lease Rentals (2 alternatives)
Lien
Long Term Lease Rentals (2 alternatives)
Make-Whole Amount
Memorandum
Net Proceeds Amount
Net Proceeds of Capital Stock
Person
Preferred Stock
Priority Debt (2 alternatives)
Property Reinvestment Application (2 alternatives)
Redeemable
Required Holders
Responsible Officer
Restricted Investments
Restricted Payment (2 alternatives)
Sale-and-Leaseback Transaction
Secured Debt
Security
Senior Financial Officer
Senior Funded Debt
Subordinated Debt
Subsidiary
Subsidiary Stock
Successor Corporation
Swaps
Transfer
Wholly-Owned Subsidiary
Definition
Z.01
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| "Affiliate"82 means, at any time, and with respect to any Person, (a) any other Person
that at such time directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under common
Control with, such first Person, and (b) any Person
beneficially owning or holding, directly or indirectly, [ ___ ]% or more
of any class of voting or equity interests of the Company or any
Subsidiary or any corporation of which the Company and its Subsidiaries
beneficially own or hold, in the aggregate, directly or indirectly,
[ ___ ]% or more of any class of voting or equity interests. As used
in this definition, "Control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of a Person,
whether through the ownership of voting securities, by contract or
otherwise. Unless the context otherwise clearly requires, any reference
to an "Affiliate" is a reference to an Affiliate of the Company. |
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Definition
Z.02
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| "Asset Disposition" means any Transfer except : |
| (a) any |
|
| (i) Transfer from a Subsidiary to the Company or a Wholly-Owned Subsidiary; |
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| (ii) Transfer from the Company to a Wholly-Owned Subsidiary; and |
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| (iii) Transfer from the Company to a Subsidiary (other than a Wholly-Owned Subsidiary) or from a Subsidiary to another Subsidiary, which in either case is for Fair Market Value, |
| so long as immediately before and immediately after the consummation of any such Transfer and after giving effect thereto, no Default or Event of Default exists; and |
| (b) any Transfer made in the ordinary course of business and involving only property that is either (i) inventory held for sale or (ii)
equipment, fixtures, supplies or materials no longer required in the
operation of the business of the Company or any of its Subsidiaries or
that is obsolete. |
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Definition
Z.03.1
|
| "Attributable Debt" means, as to any particular lease relating to a Sale-and-Leaseback Transaction, the present value of all [Long Term] Lease Rentals
required to be paid by the Company or any Subsidiary under such lease
during the remaining term thereof (determined in accordance with
generally accepted financial practice using a discount factor equal to
the interest rate implicit in such lease if known or, if not known, of
[ ___ ]% per annum). |
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An alternative follows:
Definition
Z.03.2
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| "Attributable Debt" means, as to any particular lease relating to a Sale-and-Leaseback Transaction, the greater of (i) the present value of all [Long Term] Lease Rentals
required to be paid by the Company or any Subsidiary under such lease
during the remaining term thereof (determined in accordance with
generally accepted financial practice using a discount factor equal to
the interest rate implicit in such lease if known or, if not known, of
[ ___ ]% per annum) and (ii) the Fair Market Value
of the property subject to such Sale-and-Leaseback Transaction as
determined at the time of consummation of such Sale-and-Leaseback
Transaction. |
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Definition
Z.04
|
| "Business Day" means (a) for the purposes of Section [ ___ ]83
only, any day other than a Saturday, a Sunday or a day on which
commercial banks in New York City are required or authorized to be
closed, and (b) for the purposes of any other provision of
this Agreement, any day other than a Saturday, a Sunday or a day on
which commercial banks in [ ___ ], [ ___ ] or [ ___ ], [ ___ ] are
required or authorized to be closed. |
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Definition
Z.05
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| "Capital Lease" means a lease
with respect to which the lessee is required concurrently to recognize
the acquisition of an asset and the incurrence of a liability in
accordance with GAAP. |
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Definition
Z.06
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| "Capital Lease Obligation" means, with respect to any Person and a Capital Lease, the amount of the obligation of such Person as the lessee under such Capital Lease which would, in accordance with GAAP, appear as a liability on a balance sheet of such Person. |
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Definition
Z.07
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| "Change in Control" has the meaning set forth in Section [ ___ ] [see Covenant 1.01 or 1.02, "Change in Control"]. |
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Definition
Z.08
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| "Code" means the Internal
Revenue Code of 1986, as amended from time to time, and the rules and
regulations promulgated thereunder from time to time. |
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Definition
Z.09
|
| "Company" means [ ___ ], a [ ___ ] corporation. |
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Definition
Z.12
|
| "Consolidated Assets" means,
at any time, the total assets of the Company and its Subsidiaries which
would be shown as assets on a consolidated balance sheet of the Company
and its Subsidiaries as of such time prepared in accordance with GAAP, after eliminating all amounts properly attributable to minority interests, if any, in the stock and surplus of Subsidiaries. |
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Definition
Z.13
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| "Consolidated Cash Flow" means, in respect of any period, the sum of (a) Consolidated Net Income for such period and (b)
the amount of all depreciation and amortization allowances and other
non-cash expenses of the Company and its Subsidiaries but only to the
extent deducted in the determination of Consolidated Net Income for such period. |
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Definition
Z.14.1
|
| "Consolidated Current Assets"
means, at any time, the total assets of the Company and its Subsidiaries
which would be shown as current assets on a balance sheet of the
Company and its Subsidiaries prepared in accordance with GAAP at such time. |
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An alternative follows:
Definition
Z.14.2
|
| "Consolidated Current Assets"
means, at any time, the total assets of the Company and its Subsidiaries
which would be shown as current assets on a balance sheet of the
Company and its Subsidiaries prepared in accordance with GAAP at such time, provided that in determining such current assets (a)
notes and accounts receivable shall be included only if good and
collectible and payable on demand or within one year from such date
(and not by their terms or by the terms of any instrument or agreement
relating thereto directly or indirectly renewable or extendible at the
option of the obligor beyond such year) and shall be valued at their
face value less reserves or accruals for uncollectible accounts
determined to be sufficient in accordance with GAAP, (b)
life insurance policies (other than the cash surrender value of any
unencumbered policies that is properly classified as a current asset in
accordance with GAAP) shall be excluded, and (c) Restricted Investments shall be excluded. |
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Definition
Z.15
|
| "Consolidated Current Debt" means, as of any date of determination, the total of all Current Debt
of the Company and its Subsidiaries outstanding on such date, after
eliminating all offsetting debits and credits between the Company and
its Subsidiaries and all other items required to be eliminated in the
course of the preparation of consolidated financial statements of the
Company and its Subsidiaries in accordance with GAAP. |
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Definition
Z.16.1
(implicitly includes Current Maturities of Funded Debt)
|
| "Consolidated Current Liabilities"
means, at any time, the total liabilities of the Company and its
Subsidiaries which would be shown as current liabilities on a balance
sheet of the Company and its Subsidiaries prepared in accordance with GAAP at such time. |
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An alternative follows:
Definition
Z.16.2
(expressly includes Current Maturities of Funded Debt)
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| "Consolidated Current Liabilities"
means, at any time, the total liabilities of the Company and its
Subsidiaries which would be shown as current liabilities on a balance
sheet of the Company and its Subsidiaries prepared in accordance with GAAP at such time, but in any event including as current liabilities, without limitation, Current Maturities of Funded Debt. |
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An alternative follows:
Definition
Z.16.3
(excludes Current Maturities of Funded Debt)
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| "Consolidated Current Liabilities"
means, at any time, the total liabilities of the Company and its
Subsidiaries which would be shown as current liabilities on a balance
sheet of the Company and its Subsidiaries prepared in accordance with GAAP at such time, but in any event excluding as current liabilities Current Maturities of Funded Debt. |
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Definition
Z.17
|
| "Consolidated Debt" means, as of any date of determination, the total of all Debt
of the Company and its Subsidiaries outstanding on such date, after
eliminating all offsetting debits and credits between the Company and
its Subsidiaries and all other items required to be eliminated in the
course of the preparation of consolidated financial statements of the
Company and its Subsidiaries in accordance with GAAP. |
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Definition
Z.18
|
| "Consolidated Funded Debt" means, as of any date of determination, the total of all Funded Debt
of the Company and its Subsidiaries outstanding on such date, after
eliminating all offsetting debits and credits between the Company and
its Subsidiaries and all other items required to be eliminated in the
course of the preparation of consolidated financial statements of the
Company and its Subsidiaries in accordance with GAAP. |
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Definition
Z.19
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| "Consolidated Income Available for Fixed Charges" means, with respect to any period, Consolidated Net Income for such period plus all amounts deducted in the computation thereof on account of (a) Fixed Charges and (b) taxes imposed on or measured by income or excess profits. |
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Definition
Z.20
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| "Consolidated Income Available for Interest Charges" means, with respect to any period, Consolidated Net Income for such period plus all amounts deducted in the computation thereof on account of (a) Interest Charges and (b) taxes imposed on or measured by income or excess profits. |
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Definition
Z.21.1
(GAAP)
|
| "Consolidated Net Income"
means, with reference to any period, the net income (or loss) of the
Company and its Subsidiaries for such period (taken as a cumulative
whole), as determined in accordance with GAAP,
after eliminating all offsetting debits and credits between the Company
and its Subsidiaries and all other items required to be eliminated in
the course of the preparation of consolidated financial statements of
the Company and its Subsidiaries in accordance with GAAP. |
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An alternative follows:
Definition
Z.21.2
(GAAP less extraordinary items)
|
| "Consolidated Net Income"84
means, with reference to any period, the net income (or loss) of the
Company and its Subsidiaries for such period (taken as a cumulative
whole), as determined in accordance with GAAP,
after eliminating all offsetting debits and credits between the Company
and its Subsidiaries and all other items required to be eliminated in
the course of the preparation of consolidated financial statements of
the Company and its Subsidiaries in accordance with GAAP, provided that there shall be excluded: |
| (a) the income (or loss) of any Person
accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Company or a Subsidiary, and the income (or loss)
of any Person, substantially all of the assets of which have been acquired in any manner, realized by such other Person prior to the date of acquisition, |
| (b) the income (or loss) of any Person
(other than a Subsidiary) in which the Company or any Subsidiary has an
ownership interest, except to the extent that any such income has been
actually received by the Company or such Subsidiary in the form of cash
dividends or similar cash distributions, |
| (c) the undistributed earnings of any
Subsidiary to the extent that the declaration or payment of dividends
or similar distributions by such Subsidiary is not at the time
permitted by the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation
applicable to such Subsidiary, |
| (d) any restoration to income of any
contingency reserve, except to the extent that provision for such
reserve was made out of income accrued during such period, |
| (e) any aggregate net gain (but not
any aggregate net loss) during such period arising from the sale,
conversion, exchange or other disposition of capital assets (such term
to include, without limitation, (i) all non-current assets and, without duplication, (ii) the
following, whether or not current: all fixed assets, whether tangible
or intangible, all inventory sold in conjunction with the disposition
of fixed assets, and all Securities), |
| (f) any gains
resulting from any write-up of any assets (but not any loss resulting
from any write-down of any assets), |
| (g) any net gain from the collection of the proceeds of life insurance policies, |
| (h) any gain arising from the acquisition of any Security, or the extinguishment, under GAAP, of any Debt, of the Company or any Subsidiary, |
| (i) any net income or gain (but not any net loss) during such period from (i) any change in accounting principles in accordance with GAAP, (ii) any prior period adjustments resulting from any change in accounting principles in accordance with GAAP, (iii) any extraordinary items, or (iv) any discontinued operations or the disposition thereof, |
| (j) any deferred credit representing
the excess of equity in any Subsidiary at the date of acquisition over
the cost of the investment in such Subsidiary, |
| (k) in the case of a successor to the
Company by consolidation or merger or as a transferee of its assets,
any earnings of the successor corporation prior to such consolidation,
merger or transfer of assets, and |
| (l) any portion of such net income that cannot be freely converted into United States Dollars. |
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Definition
Z.22.1
(basic: capital accounts less minority interests)
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| "Consolidated Net Worth"85 means, at any time, |
| (a) the sum of (i) the par value (or value stated on the books of the corporation) of the capital stock (but excluding86 treasury stock and capital stock subscribed and unissued) of the Company and its Subsidiaries plus (ii)
the amount of the paid-in capital and retained earnings of the Company
and its Subsidiaries, in each case as such amounts would be shown on a
consolidated balance sheet of the Company and its Subsidiaries as of
such time prepared in accordance with GAAP, minus |
| (b) to the extent included in clause
(a), all amounts properly attributable to minority interests, if any,
in the stock and surplus of Subsidiaries. |
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An alternative follows:
Definition
Z.22.2
(basic: assets less liabilities)
|
| "Consolidated Net Worth"87 means, at any time, |
| (a) the total assets of the Company
and its Subsidiaries which would be shown as assets on a consolidated
balance sheet of the Company and its Subsidiaries as of such time
prepared in accordance with GAAP, after eliminating all amounts properly attributable to minority interests, if any, in the stock and surplus of Subsidiaries, minus |
| (b) the total liabilities of the
Company and its Subsidiaries which would be shown as liabilities on a
consolidated balance sheet of the Company and its Subsidiaries as of
such time prepared in accordance with GAAP. |
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An alternative follows:
Definition
Z.22.3
(adjusted)
|
| Consolidated Net Worth:88 [insert text of Definition Z.22.1 or Z.22.2, as appropriate], minus |
| (c) any increase in the amount of
Consolidated Net Worth attributable to a write-up in the book value of
any asset on the books of the Company resulting from a revaluation
thereof subsequent to [ ____________, ____ ], minus |
| (d) the amounts, if any, at which any
shares of capital stock of the Company or any Subsidiary appear as an
asset on the balance sheet from which Consolidated Net Worth is
determined for the purposes of this definition, minus |
| (e) all deferred assets (other than prepaid taxes and other expenses), minus |
| (f) the book value of all Restricted Investments. |
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An alternative follows:
Definition
Z.22.4
(tangible- simple form)
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| Consolidated Net Worth:89 [insert text of Definition Z.22.1 or Z.22.2, as appropriate], minus |
| (c) the net book amount of all assets
of the Company and its Subsidiaries (after deducting any reserves
applicable thereto) which would be shown as intangible assets on a
consolidated balance sheet of the Company and its Subsidiaries as of
such time prepared in accordance with GAAP. |
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An alternative follows:
Definition
Z.22.5
(tangible-
detailed form)
|
| Consolidated Net Worth:90 [insert text of Definition Z.22.1 or Z.22.2, as appropriate], minus |
| (c) the net book value of all assets,
after deducting any reserves applicable thereto, which would be treated
as intangible under GAAP,
including, without limitation, good will, trademarks, trade names,
service marks, brand names, copyrights, patents and unamortized debt
discount and expense, organizational expenses and the excess of the
equity in any Subsidiary over the cost of the investment in such
Subsidiary. |
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An alternative follows:
Definition
Z.22.6
(tangible/adjust-ed)
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| Consolidated Net Worth:91 [insert text of Definition Z.22.1 or Z.22.2, as appropriate], minus |
| (c) the net book value of all assets,
after deducting any reserves applicable thereto, which would be treated
as intangible under GAAP,
including, without limitation, good will, trademarks, trade names,
service marks, brand names, copyrights, patents and unamortized debt
discount and expense, organizational expenses and the excess of the
equity in any Subsidiary over the cost of the investment in such
Subsidiary, minus |
| (d) any increase in the amount of
Consolidated Net Worth attributable to a write-up in the book value of
any asset on the books of the Company resulting from a revaluation
thereof subsequent to [ ____________, ____ ], minus |
| (e) the amounts, if any, at which any
shares of capital stock of the Company or any Subsidiary appear as an
asset on the balance sheet from which Consolidated Net Worth is
determined for the purposes of this definition, minus |
| (f) all deferred assets (other than prepaid taxes and other expenses), minus |
| (g) the book value of all Restricted Investments. |
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Definition
Z.23
|
| "Consolidated Operating Cash Flow" means, in respect of any period, the sum of (a) Consolidated Net Income for such period and (b) the
amount of all interest expenses, depreciation, amortization, income
taxes, deferred items and other non-cash expenses of the Company and
its Subsidiaries, but only to the extent deducted in the determination
of Consolidated Net Income for such period. |
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Definition
Z.26
|
| "Control Event" has the meaning set forth in Section [ ___ ] [see Covenant 1.01 or 1.02, "Change in Control"]. |
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Definition
Z.27.1
(current maturities of funded debt not excluded)
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| "Current Debt" means, with respect to any Person, all Debt of such Person
which by its terms or by the terms of any instrument or agreement
relating thereto matures on demand or within one year from the date of
the creation thereof and is not directly or indirectly renewable or
extendible at the option of the obligor in respect thereof to a date
one year or more from such date, provided that Debt
outstanding under a revolving credit or similar agreement which
obligates the lender or lenders to extend credit over a period of one
year or more shall constitute Funded Debt and not Current Debt, even though such Debt by its terms matures on demand or within one year from such date. |
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An alternative follows:
Definition
Z.27.2
(current maturities of funded debt excluded)
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| "Current Debt" means, with respect to any Person, all Debt of such Person
which by its terms or by the terms of any instrument or agreement
relating thereto matures on demand or within one year from the date of
the creation thereof and is not directly or indirectly renewable or
extendible at the option of the obligor in respect thereof to a date
one year or more from such date, provided that (a) Debt
outstanding under a revolving credit or similar agreement which
obligates the lender or lenders to extend credit over a period of one
year or more and (b) Current Maturities of Funded Debt shall constitute Funded Debt and not Current Debt, even though such Debt by its terms matures on demand or within one year from such date. |
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Definition
Z.28
|
| "Current Maturities of Funded Debt" means, at any time and with respect to any item of Funded Debt, the portion of such Funded Debt outstanding at such time which by the terms of such Funded Debt
or the terms of any instrument or agreement relating thereto is due on
demand or within one year from such time (whether by sinking fund,
other required prepayment or final payment at maturity) and is not
directly or indirectly renewable, extendible or refundable at the
option of the obligor under an agreement or firm commitment in effect
at such time to a date one year or more from such time. |
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Definition
Z.29
|
| "Debt"92 means, with respect to any Person, without duplication, |
| (a) its liabilities for borrowed money;93 |
| (b) its liabilities for the deferred purchase price of property acquired by such Person
(excluding accounts payable arising in the ordinary course of business
but including, without limitation, all liabilities created or arising
under any conditional sale or other title retention agreement with
respect to any such property); |
| (c) its Capital Lease Obligations; |
| (d) all liabilities for borrowed money secured by any Lien with respect to any property owned by such Person (whether or not it has assumed or otherwise become liable for such liabilities);94 and |
| (e) any Guaranty of such Person with respect to liabilities of a type described in any of clauses (a) through (d) hereof. |
| Debt of any Person shall include all obligations of such Person of the character described in clauses (a) through (e) to the extent such Person remains legally liable in respect thereof notwithstanding that any such obligation is deemed to be extinguished under GAAP. |
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Definition
Z.30.1
(proceeds applied to pay Debt of Company's choice)
| |
An alternative follows:
Definition
Z.30.2
(proceeds applied to pay Debt with all Notes prepaid their Ratable Portions)
|
| "Debt Prepayment Application" means ... |
| [same as Definition Z.30.1 but add the following to the end thereof:] |
| ,provided that in the course of making such
application the Company shall prepay each outstanding Note in
accordance with Section [ ___ ]95 in a principal amount which [, when added to the [prepayment premium] [Make-Whole Amount] applicable thereto,] equals the Ratable Portion for such Note. As used in this definition, "Ratable Portion" for any Note means an amount equal to the product of (x) the Net Proceeds Amount being so applied to the payment of [Debt/Funded Debt/Senior Funded Debt] multiplied by (y) a
fraction the numerator of which is the outstanding principal amount of
such Note and the denominator of which is the aggregate principal
amount of [Debt/Funded Debt/Senior Funded Debt] of the Company and its Subsidiaries. |
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An alternative follows:
Definition
Z.30.3
(proceeds applied to pay debt with all Notes offered prepayment of Ratable Portion)
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| "Debt Prepayment Application" means ... |
| [same as Definition Z.30.1 but add the following to the end thereof:] |
| , provided that in the course of making
such application the Company shall offer to prepay each outstanding
Note in accordance with Section [ ___ ]96 in a principal amount which [, when added to the [prepayment premium] [Make-Whole Amount]
applicable thereto,] equals the Ratable Portion for such Note. If any
holder of a Note fails to accept such offer of prepayment, then, for
purposes of the preceding sentence only, the Company nevertheless will
be deemed to have paid [Debt/Funded Debt/Senior Funded Debt] in an amount equal to the Ratable Portion for such Note. "Ratable Portion" for any Note means an amount equal to the product of (x) the Net Proceeds Amount being so applied to the payment of [Debt/Funded Debt/Senior Funded Debt] multiplied by (y) a
fraction the numerator of which is the outstanding principal amount of
such Note and the denominator of which is the aggregate principal
amount of [Debt/Funded Debt/Senior Funded Debt] of the Company and its Subsidiaries. |
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Definition
Z.31
|
| "Debt Service" means, with respect to any period, the sum of the following: (a) Interest Charges for such period and (b) all payments of principal in respect of Debt of the Company and its Subsidiaries (including the principal component of any payments in respect of Capital Lease Obligations)
paid or payable during such period after eliminating all offsetting
debits and credits between the Company and its Subsidiaries and all
other items required to be eliminated in the course of the preparation
of consolidated financial statements of the Company and its
Subsidiaries in accordance with GAAP.97 |
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Definition
Z.32
|
| "Debt Service Coverage Ratio" means, at any time, the ratio of (a) Consolidated Cash Flow
for the [fiscal quarter/fiscal year/period of four consecutive fiscal
quarters/period of 12 full consecutive calendar months] ending on, or
most recently ended prior to, such time to (b) Debt Service for such [quarter/year/period]. |
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Definition
Z.33
|
| "Default" means an event or
condition the occurrence or existence of which would, with the lapse of
time or the giving of notice or both, become an Event of Default. |
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Definition
Z.34
|
| "Disposition Value" means, at any time, with respect to any property |
| (a) in the case of property that does not constitute Subsidiary Stock, the book value thereof, valued at the time of such disposition in good faith by the Company, and |
| (b) in the case of property that constitutes Subsidiary Stock,
an amount equal to that percentage of book value of the assets of the
Subsidiary that issued such stock as is equal to the percentage that
the book value of such Subsidiary Stock
represents of the book value of all of the outstanding capital stock of
such Subsidiary (assuming, in making such calculations, that all
Securities convertible into such capital stock are so converted and
giving full effect to all transactions that would occur or be required
in connection with such conversion) determined at the time of the
disposition thereof, in good faith by the Company. |
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Definition
Z.35
|
| "Distribution" means, in respect of any corporation, association or other business entity: |
| (a) dividends or other distributions
or payments on capital stock or other equity interest of such
corporation, association or other business entity (except distributions
in such stock or other equity interest); and |
| (b) the redemption or acquisition of
such stock or other equity interests or of warrants, rights or other
options to purchase such stock or other equity interests (except when
solely in exchange for such stock or other equity interests) unless
made, contemporaneously, from the net proceeds of a sale of such stock
or other equity interests. |
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Definition
Z.36
|
| "ERISA" means the Employee
Retirement Income Security Act of 1974, as amended from time to time,
and the rules and regulations promulgated thereunder from time to time
in effect. |
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Definition
Z.37
|
| "Event of Default" has the meaning set forth in Section [ ___ ]. |
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Definition
Z.38
|
| "Exchange Act" means the Securities Exchange Act of 1934, as amended. |
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Definition
Z.39
|
| "Fair Market Value" means, at
any time and with respect to any property, the sale value of such
property that would be realized in an arm's-length sale at such time
between an informed and willing buyer and an informed and willing
seller (neither being under a compulsion to buy or sell). |
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An alternative follows:
An alternative follows:
Definition
Z.41.2
(using Cash Flow)
|
| "Fixed Charges Coverage Ratio" means, at any time, the ratio of (a) Consolidated Cash Flow
for the [fiscal quarter/fiscal year/period of four consecutive fiscal
quarters/period of 12 full consecutive calendar months] ending on, or
most recently ended prior to, such time to (b) Fixed Charges for such [quarter/year/period]. |
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Definition
Z.42.1
(current maturities not included)
|
| "Funded Debt" means, with respect to any Person, all Debt of such Person
which by its terms or by the terms of any instrument or agreement
relating thereto matures, or which is otherwise payable or unpaid, one
year or more from, or is directly or indirectly renewable or extendible
at the option of the obligor in respect thereof to a date one year or
more (including, without limitation, an option of such obligor under a
revolving credit or similar agreement obligating the lender or lenders
to extend credit over a period of one year or more) from, the date of
the creation thereof. |
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An alternative follows:
Definition
Z.42.2
(current maturities included)
|
| "Funded Debt" means, with respect to any Person, all Debt of such Person
which by its terms or by the terms of any instrument or agreement
relating thereto matures, or which is otherwise payable or unpaid, one
year or more from, or is directly or indirectly renewable or extendible
at the option of the obligor in respect thereof to a date one year or
more (including, without limitation, an option of such obligor under a
revolving credit or similar agreement obligating the lender or lenders
to extend credit over a period of one year or more) from, the date of
the creation thereof, provided that Funded Debt shall include, as at any date of determination, Current Maturities of Funded Debt. |
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Definition
Z.43
|
| "GAAP" means generally accepted accounting principles as in effect from time to time in the United States of America. |
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Definition
Z.44
|
| "Guaranty"98 means, with respect to any Person,
any obligation (except the endorsement in the ordinary course of
business of negotiable instruments for deposit or collection) of such Person
guaranteeing or in effect guaranteeing (whether by reason of being a
general partner of a partnership or otherwise) any indebtedness,
dividend or other obligation of any other Person
in any manner, whether directly or indirectly, including (without
limitation) obligations incurred through an agreement, contingent or
otherwise, by such Person: |
| (a) to purchase such indebtedness or obligation or any property constituting security therefor; |
| (b) to advance or supply funds (i) for the purchase or payment of such indebtedness or obligation, or (ii) to maintain any working capital or other balance sheet condition or any income statement condition of any other Person or otherwise to advance or make available funds for the purchase or payment of such indebtedness or obligation; |
| (c) to lease properties or to
purchase properties or services primarily for the purpose of assuring
the owner of such indebtedness or obligation of the ability of any
other Person to make payment of the indebtedness or obligation; or |
| (d) otherwise to
assure the owner of such indebtedness or obligation against loss in
respect thereof. |
| In any computation of the indebtedness or other liabilities of the obligor under any Guaranty, the indebtedness or other obligations that are the subject of such Guaranty shall be assumed to be direct obligations of such obligor. |
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Definition
Z.45
|
| "Indebtedness"99 with respect to any Person means, at any time, without duplication, |
| (a) its liabilities
for borrowed money and its redemption obligations in respect of
mandatorily redeemable100 Preferred Stock; |
| (b) its liabilities for the deferred purchase price of property acquired by such Person
(excluding accounts payable arising in the ordinary course of business
but including all liabilities created or arising under any conditional
sale or other title retention agreement with respect to any such
property); |
| (c) all liabilities appearing on its balance sheet in accordance with GAAP in respect of Capital Leases; |
| (d) all liabilities for borrowed money secured by any Lien with respect to any property owned by such Person (whether or not it has assumed or otherwise become liable for such liabilities); |
| (e) all its liabilities in respect of
letters of credit or instruments serving a similar function issued or
accepted for its account by banks and other financial institutions
(whether or not representing obligations for borrowed money); |
| (f) Subsidiary Stock of such Person; and |
| (g) any Guaranty of such Person with respect to liabilities of a type described in any of clauses (a) through (f) hereof. |
| Indebtedness of any Person shall include all obligations of such Person of the character described in clauses (a) through (g) to the extent such Person remains legally liable in respect thereof notwithstanding that any such obligation is deemed to be extinguished under GAAP. |
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Definition
Z.46.1
(exclude capitalized interest)
|
| "Interest Charges" means,
with respect to any period, the sum (without duplication) of the
following (in each case, eliminating all offsetting debits and credits
between the Company and its Subsidiaries and all other items required
to be eliminated in the course of the preparation of consolidated
financial statements of the Company and its Subsidiaries in accordance
with GAAP): (a) all interest in respect of Debt of the Company and its Subsidiaries (including imputed interest on Capital Lease Obligations101 ) deducted in determining Consolidated Net Income for such period, and (b) all debt discount and expense amortized or required to be amortized in the determination of Consolidated Net Income for such period.102 |
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An alternative follows:
Definition
Z.46.2
(include capitalized interest)
|
| "Interest Charges" means,
with respect to any period, the sum (without duplication) of the
following (in each case, eliminating all offsetting debits and credits
between the Company and its Subsidiaries and all other items required
to be eliminated in the course of the preparation of consolidated
financial statements of the Company and its Subsidiaries in accordance
with GAAP): (a) all interest in respect of Debt of the Company and its Subsidiaries (including imputed interest on Capital Lease Obligations103 ) deducted in determining Consolidated Net Income for such period, together with all interest capitalized or deferred during such period and not deducted in determining Consolidated Net Income for such period, and (b) all debt discount and expense amortized or required to be amortized in the determination of Consolidated Net Income for such period.104 |
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An alternative follows:
Definition
Z.47.2
(using Cash Flow)
|
| "Interest Charges Coverage Ratio" means, at any time, the ratio of (a) Consolidated Cash Flow
for the [fiscal quarter/fiscal year/period of four consecutive fiscal
quarters/period of 12 full consecutive calendar months] ending on, or
most recently ended prior to, such time to (b) Interest Charges for such [quarter/year/period]. |
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Definition
Z.48
|
| "Investment" means any investment, made in cash or by delivery of property, by the Company or any of its Subsidiaries (i) in any Person, whether by acquisition of stock, indebtedness105 or other obligation or Security, or by loan, Guaranty, advance, capital contribution or otherwise, or (ii) in any property. |
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Definition
Z.49.1
(include performance rents)
|
| "Lease Rentals" means, with
respect to any period, the sum of the rental and other obligations
required to be paid during such period by the Company or any Subsidiary
as lessee under all leases of real or personal property (other than Capital Leases),
excluding any amount required to be paid by the lessee (whether or not
therein designated as rental or additional rental) on account of
maintenance and repairs, insurance, taxes, assessments, water rates and
similar charges, provided that, if at the date of
determination, any such rental or other obligations (or portion
thereof) are contingent or not otherwise definitely determinable by the
terms of the related lease, the amount of such obligations (or such
portion thereof) (i) shall be assumed to be equal to the
amount of such obligations for the period of 12 consecutive calendar
months immediately preceding the date of determination or (ii) if the related lease was not in effect during such preceding 12-month period, shall be the amount estimated by a Senior Financial Officer of the Company on a reasonable basis and in good faith. |
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Definition
Z.49.2
(exclude performance rents)
|
| "Lease Rentals" means, with
respect to any period, the sum of the minimum amount of rental and
other obligations required to be paid during such period by the Company
or any Subsidiary as lessee under all leases of real or personal
property (other than Capital Leases), excluding any amounts required to be paid by the lessee (whether or not therein designated as rental or additional rental) (a) which are on account of maintenance and repairs, insurance, taxes, assessments, water rates and similar charges, or (b)
which are based on profits, revenues or sales realized by the lessee
from the leased property or otherwise based on the performance of the
lessee. |
|
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Definition
Z.50
|
| "Lien" means, with respect to any Person,
any mortgage, lien, pledge, charge, security interest or other
encumbrance, or any interest or title of any vendor, lessor, lender or
other secured party to or of such Person under any conditional sale or other title retention agreement or Capital Lease, upon or with respect to any property or asset of such Person (including in the case of stock, stockholder agreements, voting trust agreements and all similar arrangements). |
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Definition
Z.51.1
(include performance rents)
|
| "Long Term Lease Rentals"
means, with respect to any period, the sum of the rental and other
obligations required to be paid during such period by the Company or
any Subsidiary as lessee under all leases of real or personal property
(other than Capital Leases)
having a term (including terms of renewal or extension at the option of
the lessor or the lessee, whether or not such option has been
exercised) expiring more than [ ___ ] year[s] after the commencement of
the initial term, excluding any amount required to be paid by the
lessee (whether or not therein designated as rental or additional
rental) on account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges, provided that,
if at the date of determination, any such rental or other obligations
are contingent or not otherwise definitely determinable by the terms of
the related lease, the amount of such obligations (i) shall be
assumed to be equal to the amount of such obligations for the period of
12 consecutive calendar months immediately preceding the date of
determination or (ii) if the related lease was not in effect during such preceding 12-month period, shall be the amount estimated by a Senior Financial Officer of the Company on a reasonable basis and in good faith. |
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An alternative follows:
Definition
Z.51.2
(exclude performance rents)
|
| "Long Term Lease Rentals"
means, with respect to any period, the sum of the minimum amount of
rental and other obligations required to be paid during such period by
the Company or any Subsidiary as lessee under all leases of real or
personal property (other than Capital Leases)
having a term (including terms of renewal or extension at the option of
the lessor or the lessee, whether or not such option has been
exercised) expiring more than [ ___ ] year[s] after the commencement of
the initial term, excluding any amounts required to be paid by the lessee (whether or not therein designated as rental or additional rental) (a) which are on account of maintenance and repairs, insurance, taxes, assessments, water rates and similar charges, or (b) which
are based on profits, revenues or sales realized by the lessee from the
leased property or otherwise based on the performance of the lessee. |
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Definition
Z.52
|
| "Make-Whole Amount"106
means with respect to any Note, an amount equal to the excess, if any,
of the Discounted Value of the Remaining Scheduled Payments with
respect to the Called Principal of such Note over the amount of such
Called Principal, provided that the Make-Whole Amount may in
no event be less than zero. For the purposes of determining the
Make-Whole Amount, the following terms have the following meanings: |
| "Called Principal" means, with respect to any Note, the principal of such Note that is to be prepaid pursuant to Section [ ___ ]107 or has become or is declared to be immediately due and payable pursuant to Section [ ___ ],108 as the context requires. |
| "Discounted Value" means,
with respect to the Called Principal of any Note, the amount obtained
by discounting all Remaining Scheduled Payments with respect to such
Called Principal from their respective scheduled due dates to the
Settlement Date with respect to such Called Principal, in accordance
with accepted financial practice and at a discount factor (applied on
the same periodic basis as that on which interest on the Notes is
payable) equal to the Reinvestment Yield with respect to such Called
Principal. |
| "Reinvestment Yield" means, with respect to the Called Principal of any Note, the yield to maturity109 implied by (i) the yields reported, as of 10:00 A.M. (New York City time) on the second Business Day preceding the Settlement Date with respect to such Called Principal, on the display designated as "Page 678"110
on the Telerate Access Service (or such other display as may replace
Page 678 on Telerate Access Service) for actively traded U.S. Treasury
securities having a maturity equal to the Remaining Average Life of
such Called Principal as of such Settlement Date, or (ii) if
such yields are not reported as of such time or the yields reported as
of such time are not ascertainable, the Treasury Constant Maturity
Series Yields reported, for the latest day for which such yields have
been so reported as of the second Business Day
preceding the Settlement Date with respect to such Called Principal, in
Federal Reserve Statistical Release H.15 (519) (or any comparable
successor publication) for actively traded U.S. Treasury securities
having a constant maturity equal to the Remaining Average Life of such
Called Principal as of such Settlement Date. Such implied yield will be
determined, if necessary, by (a) converting U.S. Treasury bill quotations to bond-equivalent yields in accordance with accepted financial practice and (b) interpolating linearly between (1) the actively traded U.S. Treasury security with the duration closest to and greater than the Remaining Average Life and (2) the actively traded U.S. Treasury security with the duration closest to and less than the Remaining Average Life. |
| "Remaining Average Life"
means, with respect to any Called Principal, the number of years
(calculated to the nearest one-twelfth year) obtained by dividing (i) such Called Principal into (ii) the sum of the products obtained by multiplying (a) the principal component of each Remaining Scheduled Payment with respect to such Called Principal by (b)
the number of years (calculated to the nearest one-twelfth year) that
will elapse between the Settlement Date with respect to such Called
Principal and the scheduled due date of such Remaining Scheduled
Payment. |
| "Remaining Scheduled Payments"
means, with respect to the Called Principal of any Note, all payments of
such Called Principal and interest thereon that would be due after the
Settlement Date with respect to such Called Principal if no payment of
such Called Principal were made prior to its scheduled due date,
provided that if such Settlement Date is not a date on which interest
payments are due to be made under the terms of the Notes, then the
amount of the next succeeding scheduled interest payment will be
reduced by the amount of interest accrued to such Settlement Date and
required to be paid on such Settlement Date pursuant to Section [ ___ ]111 or [ ___ ].112 |
| "Settlement Date" means, with
respect to the Called Principal of any Note, the date on which such
Called Principal is to be prepaid pursuant to Section [ ___ ]113 or has become or is declared to be immediately due and payable pursuant to Section [ ___ ],114 as the context requires. |
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Definition
Z.53
|
| "Memorandum" means [describe
the offering memorandum or other disclosure material in which the
business(es) of the Company and its Subsidiaries is (are) described]. |
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Definition
Z.54
|
| "Net Proceeds Amount" means, with respect to any Transfer of any Property by any Person, an amount equal to the difference of |
| (a) the aggregate amount of the consideration (valued at the Fair Market Value of such consideration at the time of the consummation of such Transfer) received by such Person in respect of such Transfer, minus |
| (b) all ordinary and reasonable out-of-pocket costs and expenses actually incurred by such Person in connection with such Transfer. |
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Definition
Z.55
|
| "Net Proceeds of Capital Stock"
means, with respect to any period, cash proceeds (net of all costs and
out-of-pocket expenses in connection therewith, including, without
limitation, placement, underwriting and brokerage fees and expenses),
received by the Company and its Subsidiaries during such period, from
the sale of all capital stock (other than Redeemable capital stock) of the Company, including in such net proceeds: |
| (a) the net amount paid upon issuance
and exercise during such period of any right to acquire any capital
stock, or paid during such period to convert a convertible debt Security to capital stock (but excluding any amount paid to the Company upon issuance of such convertible debt Security); and |
| (b) any amount paid to the Company upon issuance of any convertible debt Security issued after [ ____________, ____ ]115 and thereafter converted to capital stock during such period. |
|
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Definition
Z.56
|
| "Person"
means an individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization, or a
government or agency or political subdivision thereof. |
|
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Definition
Z.57
|
| "Preferred Stock" means, in
respect of any corporation, shares of the capital stock of such
corporation that are entitled to preference or priority over any other
shares of the capital stock of such corporation in respect of payment
of dividends or distribution of assets upon liquidation. |
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Definition
Z.58.1
|
| "Priority Debt" means, without duplication, the sum of (a) all Debt of the Company secured by any Lien with respect to any property owned by the Company or any of its Subsidiaries, (b) all Debt116 of Subsidiaries (except Debt held by the Company or a Wholly-Owned Subsidiary), and (c) all Attributable Debt of the Company and its Subsidiaries.117 |
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An alternative follows:
Definition
Z.58.2
|
| "Priority Debt" means the sum of (a) all Debt of the Company secured by Liens permitted by Section [ ___ ],118 (b) all Debt119 of Subsidiaries permitted by Section [ ___ ],120 and (c) all Attributable Debt of the Company and its Subsidiaries permitted by Section [ ___ ].121 . |
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Definition
Z.59.1
(summary)
|
| "Property Reinvestment Application" means, with respect to any Transfer of property, the application of an amount equal to the Net Proceeds Amount with respect to such Transfer
to the acquisition by the Company or any Subsidiary of operating assets
of the Company or any Subsidiary to be used in the [ordinary course of]
[principal] business of such Person. |
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An alternative follows:
Definition
Z.59.2
(detailed)
|
| "Property Reinvestment Application" means, with respect to any Transfer of property, the satisfaction of each of the following conditions: |
| (a) an amount equal to the Net Proceeds Amount with respect to such Transfer shall have been applied to the acquisition by the Company, or any of its Subsidiaries making such Transfer, of property that upon such acquisition is unencumbered by any Lien (other than Liens described in subparagraphs [ ___ ] through [ ___ ], inclusive, of Section [ ___ ]122 ) and that |
|
| (i) constitutes property that is (x) property classifiable under GAAP
as non-current to the extent that such proceeds are derived from the
transfer of property that was properly classifiable as non-current, and
otherwise properly classifiable as either current or non-current, and (y) to be used in the ordinary course of business of the Company and the Subsidiaries, or |
|
| (ii) constitutes equity interests of a Person that shall be, on or prior to the time of such acquisition, a Subsidiary123
of the Company, and that shall invest the proceeds of such acquisition
in property of the nature described in the immediately preceding
clause (i);124 and |
| (b) the Company shall have delivered
a certificate of a Responsible Officer of the Company to each holder of
a Note referring to Section [ ___ ]125 and identifying the property that was the subject of such Transfer, the Disposition Value of such property, and the nature, terms, amount and application of the proceeds from the Transfer. |
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Definition
Z.60
|
| "Redeemable" means, with respect to the capital stock of any Person, each share of such Person's capital stock that is: |
| (a) redeemable,
payable or required to be purchased or otherwise retired or
extinguished, or convertible into Debt of such Person (i) at a fixed or determinable date, whether by operation of sinking fund or otherwise, (ii) at the option of any Person other than such Person, or (iii) upon the occurrence of a condition not solely within the control of such Person; or |
| (b) convertible into other Redeemable capital stock. |
|
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Definition
Z.61
|
| "Required Holders" means, at
any time, the holders of at least [ ___ ]% in principal amount of the
Notes at the time outstanding (exclusive of Notes then owned by the
Company, any of its Subsidiaries, or any of its Affiliates).126 |
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Definition
Z.62
|
| "Responsible Officer" means any Senior Financial Officer and any other officer of the Company with responsibility for the administration of the relevant portion of this Agreement. |
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Definition
Z.63
|
| "Restricted Investments" means all Investments except the following:127 |
| (a) property to be used in the ordinary course of business of the Company and its Subsidiaries; |
| (b) current assets arising from the
sale of goods and services in the ordinary course of business of the
Company and its Subsidiaries; |
| (c) Investments in one or more Subsidiaries or any Person that concurrently with such Investment becomes a Subsidiary;128 |
| (d) Investments existing on the date of the Closing and disclosed in Schedule [ ___ ]; |
| (e) Investments in United States Governmental Securities, provided that such obligations mature within 365 days from the date of acquisition thereof; |
| (f) Investments in certificates of deposit or banker's acceptances issued by an Acceptable Bank, provided that such obligations mature within 365 days from the date of acquisition thereof; |
| (g) Investments
in commercial paper given the highest rating by a credit rating agency
of recognized national standing and maturing not more than 270 days
from the date of creation thereof; |
| (h) Investments in Repurchase Agreements; and |
| (i) Investments
in tax-exempt obligations of any state of the United States of America,
or any municipality of any such state, in each case rated "AA" or
better by S&P, "Aa2" or better by Moody's or an equivalent rating
by any other credit rating agency of recognized national standing, provided that such obligations mature within 365 days from the date of acquisition thereof. |
| As of any date of determination, each Restricted Investment shall be valued at the greater of: |
| (x) the amount at which such
Restricted Investment is shown on the books of the Company or any of
its Subsidiaries (or zero if such Restricted Investment is not shown on
any such books); and |
| (y) either |
|
| (i) in the case of any Guaranty of the obligation of any Person,
the amount which the Company or any of its Subsidiaries has paid on
account of such obligation less any recoupment by the Company or such
Subsidiary of any such payments, or |
|
| (ii) in the case of any other Restricted Investment, the excess of (x) the greater of (A) the amount originally entered on the books of the Company or any of its Subsidiaries with respect thereto and (B) the cost thereof to the Company or its Subsidiary over (y)
any return of capital (after income taxes applicable thereto) upon such
Restricted Investment through the sale or other liquidation thereof or
part thereof or otherwise. |
| As used in this definition of "Restricted Investments": |
| "Acceptable Bank" means any bank or trust company (i) which is organized under the laws of the United States of America or any State thereof, (ii) which has capital, surplus and undivided profits aggregating at least $[ ___ ], and (iii) whose
long-term unsecured debt obligations (or the long-term unsecured debt
obligations of the bank holding company owning all of the capital stock
of such bank or trust company) shall have been given a rating of "A" or
better by S&P, "A2" or better by Moody's or an equivalent rating by
any other credit rating agency of recognized national standing. |
| "Acceptable Broker-Dealer" means any Person other than a natural person (i) which is registered as a broker or dealer pursuant to the Exchange Act and (ii) whose
long-term unsecured debt obligations shall have been given a rating of
"A" or better by S&P, "A2" or better by Moody's or an equivalent
rating by any other credit rating agency of recognized national
standing. |
| "Moody's" means Moody's Investors Service, Inc. |
| "Repurchase Agreement" means any written agreement |
|
| (a) that provides for (i) the
transfer of one or more United States Governmental Securities in an
aggregate principal amount at least equal to the amount of the Transfer
Price (defined below) to the Company or any of its Subsidiaries from an
Acceptable Bank or an Acceptable Broker-Dealer against a transfer of
funds (the "Transfer Price") by the Company or such Subsidiary to such
Acceptable Bank or Acceptable Broker-Dealer, and (ii) a
simultaneous agreement by the Company or such Subsidiary, in connection
with such transfer of funds, to transfer to such Acceptable Bank or
Acceptable Broker-Dealer the same or substantially similar United
States Governmental Securities for a price not less than the Transfer
Price plus a reasonable return thereon at a date certain not later than
365 days after such transfer of funds, |
|
| (b) in respect of which the
Company or such Subsidiary shall have the right, whether by contract or
pursuant to applicable law, to liquidate such agreement upon the
occurrence of any default thereunder, and |
|
| (c) in connection with which
the Company or such Subsidiary, or an agent thereof, shall have taken
all action required by applicable law or regulations to perfect a Lien in such United States Governmental Securities. |
| "S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill, Inc. |
| "United States Governmental Security"
means any direct obligation of, or obligation guaranteed by, the United
States of America, or any agency controlled or supervised by or acting
as an instrumentality of the United States of America pursuant to
authority granted by the Congress of the United States of America, so
long as such obligation or guarantee shall have the benefit of the full
faith and credit of the United States of America which shall have been
pledged pursuant to authority granted by the Congress of the United
States of America. |
|
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|
| |
Definition
Z.64.1
(includes payments on Subordinated Debt)
|
| "Restricted Payment" means |
| (a) any Distribution
in respect of the Company or any Subsidiary of the Company (other than
on account of capital stock or other equity interests of a Subsidiary
of the Company owned legally and beneficially by the Company or another
Subsidiary of the Company), including, without limitation, any Distribution resulting in the acquisition by the Company of Securities which would constitute treasury stock, and |
| (b) any payment, repayment,
redemption, retirement, repurchase or other acquisition, direct or
indirect, by the Company or any Subsidiary of, on account of, or in
respect of, the principal of any Subordinated Debt (or any instalment thereof) prior to the regularly scheduled maturity date thereof (as in effect on the date such Subordinated Debt was originally incurred). |
| For purposes of this Agreement, the amount of any Restricted Payment made in property shall be the greater of (x) the Fair Market Value of such property (as determined in good faith by the board of directors (or equivalent governing body) of the Person making such Restricted Payment) and (y) the net book value thereof on the books of such Person, in each case determined as of the date on which such Restricted Payment is made. |
|
|
|
| |
An alternative follows:
Definition
Z.64.2
(excludes payments on Subordinated Debt)
|
| "Restricted Payment" means any Distribution
in respect of the Company or any Subsidiary of the Company (other than
on account of capital stock or other equity interests of a Subsidiary
owned legally and beneficially by the Company or another Subsidiary),
including, without limitation, any Distribution
resulting in the acquisition by the Company of Securities which would
constitute treasury stock. For purposes of this Agreement, the amount
of any Restricted Payment made in property shall be the greater of (x) the Fair Market Value of such property (as determined in good faith by the board of directors (or equivalent governing body) of the Person making such Restricted Payment) and (y) the net book value thereof on the books of such Person, in each case determined as of the date on which such Restricted Payment is made.129 |
|
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|
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Definition
Z.65
|
| "Sale-and-Leaseback Transaction" means a transaction or series of transactions pursuant to which the Company or any Subsidiary shall sell or transfer to any Person
(other than the Company or a Subsidiary) any property, whether now owned
or hereafter acquired, and, as part of the same transaction or series
of transactions, the Company or any Subsidiary shall rent or lease as
lessee (other than pursuant to a Capital Lease),130
or similarly acquire the right to possession or use of, such property or
one or more properties which it intends to use for the same purpose or
purposes as such property.131 |
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Definition
Z.66
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| "Secured Debt" means, with respect to any Person, any Debt132 of such Person that is secured in any manner by any Lien on any property. |
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Definition
Z.67
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| "Security" has the meaning set forth in section 2(1) of the Securities Act of 1933, as amended. |
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Definition
Z.68
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| "Senior Financial Officer" means the chief financial officer, principal accounting officer, treasurer or comptroller of the Company. |
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Definition
Z.70
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| "Subordinated Debt" means any Debt that is in any manner subordinated in right of payment or security in any respect to Debt evidenced by the Notes.133 |
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Definition
Z.71
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| "Subsidiary" means, as to any Person, any corporation, association or other business entity in which such Person or one or more of its Subsidiaries or such Person
and one or more of its Subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group) ordinarily, in the absence
of contingencies, to elect a majority of the directors (or Persons
performing similar functions) of such entity, and any partnership or
joint venture if more than a 50% interest in the profits or capital
thereof is owned by such Person or one or more of its Subsidiaries or such Person
and one or more of its Subsidiaries (unless such partnership can and
does ordinarily take major business actions without the prior approval
of such Person
or one or more of its Subsidiaries). Unless the context otherwise
clearly requires, any reference to a "Subsidiary" is a reference to a
Subsidiary of the Company. |
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Definition
Z.72
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| "Subsidiary Stock" means, with respect to any Person, the stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into stock) of any Subsidiary of such Person. |
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Definition
Z.73
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| "Successor Corporation" has the meaning set forth in Section [ ___ ] [see Covenant 8.02 or 8.03, "Merger, Consolidation, etc."]. |
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Definition
Z.74
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| "Swaps"134 means, with respect to any Person, payment obligations with respect to interest rate swaps, currency swaps and similar obligations obligating such Person
to make payments, whether periodically or upon the happening of a
contingency. For the purposes of this Agreement, the amount of the
obligation under any Swap shall be the amount determined in respect
thereof as of the end of the then most recently ended fiscal quarter of
such Person,
based on the assumption that such Swap had terminated at the end of
such fiscal quarter, and in making such determination, if any agreement
relating to such Swap provides for the netting of amounts payable by
and to such Person thereunder or if any such agreement provides for the simultaneous payment of amounts by and to such Person, then in each such case, the amount of such obligation shall be the net amount so determined. |
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Definition
Z.75
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| "Transfer" means, with respect to any Person, any transaction in which such Person sells, conveys, transfers or leases (as lessor) any of its property, including, without limitation, Subsidiary Stock. For purposes of determining the application of the Net Proceeds Amount in respect of any Transfer, the Company may designate any Transfer as one or more separate Transfers each yielding a separate Net Proceeds Amount. In any such case, (a) the Disposition Value of any property subject to each such separate Transfer and (b) the amount of [Consolidated Cash Flow]135 attributable to any property subject to each such separate Transfer shall be determined by ratably allocating the aggregate Disposition Value of, and the aggregate [Consolidated Cash Flow] attributable to, all property subject to all such separate Transfers to each such separate Transfer on a proportionate basis.136 |
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Definition
Z.76
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| "Wholly-Owned Subsidiary"
means any Subsidiary of the Company all of the equity interests (except
director's qualifying shares) and voting interests [and Debt] of which are owned by any one or more of the Company and the Company's other Wholly-Owned Subsidiaries. |
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