175
(2)
in respect of Hedging Obligations (the amount of any such Indebtedness to be equal at any time to either (a)
zero if such Hedging Obligation is incurred pursuant to clause (8) of the second paragraph of this covenant or
(b) the notional amount of such Hedging Obligation if not incurred pursuant to such clause);
(3)
the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(4)
in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser
of:
(a)
the Fair Market Value of such assets at the date of determination; and
(b)
the amount of the Indebtedness of the other Person.
Accrual of interest, accrual of dividends, the accretion or amortization of original issue discount, the payment of interest
on any Indebtedness in the form of additional Indebtedness, the reclassification of preferred stock as Indebtedness due to
a change in accounting principles and the payment of dividends in the form of additional shares of preferred stock or
Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of preferred stock or
Disqualified Stock for purposes of this covenant. The amount of any Indebtedness outstanding as of any date shall be the
principal amount or liquidation preference thereof, together with any interest thereon that is more than 30 days past due,
in the case of any other Indebtedness.
If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be
deemed to be incurred by a Restricted Subsidiary of the Issuer as of such date (and, if such Indebtedness is not permitted
to be incurred as of such date under this "—
Incurrence of Indebtedness and Issuance of Preferred Stock
" covenant, the
Issuer shall be in Default of this covenant).
For purposes of determining compliance with any US dollar-denominated restriction on the incurrence of Indebtedness,
the US dollar-equivalent principal amount of Indebtedness denominated in a different currency shall be utilized,
calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred; provided
however, that (i) if such Indebtedness denominated in non-US dollar currency is subject to a Currency Exchange
Protection Agreement with respect to US dollars, the amount of such Indebtedness expressed in US dollars will be
calculated so as to take account of the effects of such Currency Exchange Protection Agreement; and (ii) the US dollar
equivalent of the principal amount of any such Indebtedness outstanding on the Issue Date shall be calculated based on
the relevant currency exchange rate in effect on the Issue Date. The principal amount of any refinancing Indebtedness
incurred in the same currency as the Indebtedness being refinanced will be the US dollar-equivalent of the Indebtedness
refinanced determined on the date such Indebtedness was originally incurred, except that to the extent that:
(1)
such US dollar-equivalent was determined based on a Currency Exchange Protection Agreement, in which case
the Refinancing Indebtedness will be determined in accordance with the preceding sentence; and
(2)
the principal amount of the refinancing Indebtedness exceeds the principal amount of the Indebtedness being
refinanced, in which case the US dollar-equivalent of such excess will be determined on the date such
refinancing Indebtedness is being incurred.
The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency
from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the
currencies in which such Permitted Refinancing Indebtedness is denominated that is in effect on the date of such
refinancing.
Notwithstanding any other provision of this covenant, the maximum amount of Indebtedness that the Issuer or any
Restricted Subsidiary may incur pursuant to this covenant shall not be deemed to be exceeded solely as a result of
fluctuations in exchange rates or currency values.
Liens
The Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume
or suffer to exist any Lien of any kind securing Indebtedness upon any of its property or assets (whether now owned or
hereafter acquired), except Permitted Liens, unless:
(1)
in the case of any Lien securing Subordinated Obligations of the Issuer or a Guarantor, the Notes or the Note
Guarantees, as applicable, are secured by a Lien on such property or assets on a senior basis to the
Subordinated Obligations so secured until such time as such Subordinated Obligations are no longer so
secured by that Lien; and
(2)
in the case of any other Lien securing Indebtedness, the Notes or the Note Guarantees, as applicable, are
secured by a Lien on such property or assets on an equal and ratable basis with the obligation or liability so
secured until such time as such obligation or liability is no longer so secured by that Lien.
