Common use of Limitation on Incurrence of Debt Clause in Contracts

Limitation on Incurrence of Debt. The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt); provided that the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Consolidated Fixed Charge Coverage Ratio of the Company would be greater than 2.0 to 1.0 (the “Ratio Test”) determined on a pro forma basis (including a pro forma application of the net proceeds therefrom) and (b) no Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt; provided further that the aggregate amount of Debt (including Acquired Debt) that may be Incurred pursuant to the foregoing by Restricted Subsidiaries that are not Guarantors shall not exceed $20 0 million at the time of Incurrence at any one time outstanding. Notwithstanding the paragraph above, the Company and its Restricted Subsidiaries may Incur Permitted Debt. For purposes of determining compliance with this Section 4.9, (A) Debt need not be Incurred solely by reference to one category of Permitted Debt described in clauses of the definition thereof or pursuant to the first paragraph of this covenant but is permitted to be Incurred in part under any combination thereof and (B) in the event that an item of Debt (or any portion thereof) meets the criteria of one or more of the categories of Permitted Debt described in the clauses of the definition thereof or is entitled to be Incurred pursuant to the first paragraph of this Section 4.9, the Company shall, in its sole discretion, classify, or reclassify, or later divide, classify or reclassify, such item of Debt (or any portion thereof) in any manner that complies with this covenant and will only be required to include the amount and type of such item of Debt in one of the Permitted Debt clauses or the first paragraph hereof and such item of Debt will be treated as having been Incurred pursuant to only one of such clauses or pursuant to the first paragraph hereof. Accrual of interest, the accretion of accreted value, amortization of original issue discount, the payment of interest in the form of additional Debt with the same terms or in the form of common stock of the Company, the payment of dividends on Capital Interests in the form of additional Capital Interests of the same class, the accretion of original issue discount or liquidation preference and increases in the amount of Debt outstanding solely as a result of fluctuations in the exchange rate of currencies or increases in the value of property securing Debt will not be deemed to be an Incurrence of Debt for purposes of this Section 4.9. Guarantees of or obligations in respect of letters of credit relating to Debt which is otherwise included in the determination of a particular amount of Debt shall not be included in the determination of such amount of Debt; provided, however, that the Incurrence of the Debt represented by such guarantee or letter of credit, as the case may be, was in compliance with this covenant. For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term debt, or first committed or first Incurred (whichever yields the lower U.S. dollar equivalent), in the case of revolving credit debt; provided that if such Debt is Incurred to refinance other Debt denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Debt does not exceed the principal amount of such Debt being refinanced. Notwithstanding any other provision of this covenant, the maximum amount of Debt that the Company and its Restricted Subsidiaries may Incur pursuant to this covenant shall not be deemed to be exceeded, with respect to any outstanding Debt, solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Debt Incurred to refinance other Debt, if Incurred in a different currency from the Debt being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Debt is denominated that is in effect on the date of such refinancing. Neither the Company nor any Guarantor will Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.

Limitation on Incurrence of Debt. The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt); provided provided, that the Company and any of its Restricted Subsidiaries that is a Guarantor may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Consolidated Fixed Charge Coverage Ratio of the Company would be greater than 2.0 to 1.0 (the “Ratio Test”) determined on a pro forma basis (including a pro forma application of the net proceeds therefrom) and (b) no Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt; provided further that the aggregate amount of Debt (including Acquired Debt) that may be Incurred pursuant to the foregoing by Restricted Subsidiaries that are not Guarantors shall not exceed $20 0 million at the time of Incurrence at any one time outstanding. Notwithstanding the first paragraph aboveof this Section 4.9, the Company and its Restricted Subsidiaries may Incur Permitted Debt. For purposes of determining compliance with this Section 4.9, (Ax) Debt need not Incurred under the Credit Agreement on the Issue Date shall initially be treated as Incurred solely by reference pursuant to one category of Permitted Debt described in clauses clause (i) of the definition thereof of “Permitted Debt,” and may not later be re-classified, (y) Guarantees or pursuant obligations with respect to letters of credit supporting Debt otherwise included in the first paragraph determination of this covenant but is permitted to the amount of Debt shall not be Incurred in part under any combination thereof included and (Bz) except as provided above, in the event that an item of Debt (or any portion thereof) meets the criteria of more than one or more (1) of the categories of Permitted Debt described and/or would have been permitted to have been Incurred pursuant to the first paragraph of this Section 4.9, the Company, in the clauses its sole discretion, may classify, and from time to time may reclassify, all or any portion of the definition thereof such item of Debt as being within one (1) or is entitled more of such categories or as being Debt permitted to be Incurred pursuant to the first paragraph of this Section 4.9, the Company shall, in its sole discretion, classify, or reclassify, or later divide, classify or reclassify, such item of Debt (or any portion thereof) in any manner that complies with this covenant and will only be required to include the amount and type of such item of Debt in one of the Permitted Debt clauses or the first paragraph hereof and such item of Debt will be treated as having been Incurred pursuant to only one of such clauses or pursuant to the first paragraph hereof. Accrual The accrual of interest, the accretion of accreted value, or amortization of original issue discount, discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Equity Interests in the forms of additional shares of Equity Interests with the same terms or in the form of common stock of the Company, the payment of dividends on Capital Interests in the form of additional Capital Interests of the same class, the accretion of original issue discount or liquidation preference and increases in the amount of Debt outstanding solely as a result of fluctuations in the exchange rate of currencies or increases in the value of property securing Debt will not be deemed to be an Incurrence of Debt or issuance of Equity Interests for purposes of this Section 4.9. Guarantees of or obligations in respect of letters of credit relating to Debt which is otherwise included in the determination of a particular amount of Debt shall not be included in the determination of such amount of Debt; provided, however, that the Incurrence of the Debt represented by such guarantee or letter of credit, as the case may be, was in compliance with this covenant. For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term debt, or first committed or first Incurred (whichever yields the lower U.S. dollar equivalent), in the case of revolving credit debt; provided that if such Debt is Incurred to refinance other Debt denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Debt does not exceed the principal amount of such Debt being refinanced. Notwithstanding any other provision of this covenant, the maximum amount of Debt that the The Company and its Restricted Subsidiaries may Incur pursuant to this covenant shall not be deemed to be exceeded, with respect to any outstanding Debt, solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Debt Incurred to refinance other Debt, if Incurred in a different currency from the Debt being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Debt is denominated that is in effect on the date of such refinancing. Neither the Company nor any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or a lower priority.

Limitation on Incurrence of Debt. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur incur any Debt (including Acquired Debt); provided that the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Consolidated Fixed Charge Coverage Ratio of the Company would be greater than 2.0 to 1.0 (the “Ratio Test”) determined from such Debt on a pro forma basis, the aggregate principal amount of all of its and its Subsidiaries’ outstanding Debt (determined on a consolidated basis (including a pro forma application in accordance with GAAP) is greater than 60% of the net proceeds therefrom) its and (b) no Event of Default shall have occurred and be continuing at the time or as a consequence of its Subsidiaries’ Total Asset Value. Section 302 Limitation on the Incurrence of such Secured Debt; provided further that the aggregate amount of Debt (including Acquired Debt) that may be Incurred pursuant . In addition to the foregoing by Restricted Subsidiaries that are not Guarantors shall not exceed $20 0 million at the time of Incurrence at any one time outstanding. Notwithstanding the paragraph limitation set forth in Section 301 above, the Company shall not, and shall not permit any of its Subsidiaries to, incur any Debt (including, without limitation, Acquired Debt) secured by any Lien on any of its or any of its Subsidiaries’ property or assets if, immediately after giving effect to the incurrence of such Debt and the application of the proceeds from such Debt on a pro forma basis, the aggregate principal amount of all of its and its Restricted Subsidiaries may Incur Permitted DebtSubsidiaries’ outstanding Debt (determined on a consolidated basis in accordance with GAAP) secured by a Lien on any of its or its Subsidiaries’ property or assets is greater than 40% of its and its Subsidiaries’ Total Asset Value. For purposes Section 303 Limitation on the Incurrence of determining compliance with this Section 4.9, (A) Debt need not be Incurred solely by reference Based on Consolidated EBITDA to one category of Permitted Annual Debt described in clauses of the definition thereof or pursuant Service Charge. In addition to the first paragraph of this covenant but is permitted to be Incurred limitations set forth in part under any combination thereof Sections 301 and (B) in the event that an item of Debt (or any portion thereof) meets the criteria of one or more of the categories of Permitted Debt described in the clauses of the definition thereof or is entitled to be Incurred pursuant to the first paragraph of this Section 4.9302 above, the Company shallshall not, in and shall not permit any of its sole discretionSubsidiaries to, classifyincur any Debt if, or reclassify, or later divide, classify or reclassify, such item of Debt (or any portion thereof) in any manner that complies with this covenant and will only be required immediately after giving effect to include the amount and type incurrence of such item of Debt in one and the application of the Permitted proceeds from such Debt clauses or on a pro forma basis, the first paragraph hereof and such item ratio of Consolidated EBITDA to Annual Debt will be treated as having been Incurred pursuant to only one Service Charge (determined on a consolidated basis in accordance with GAAP) for the period consisting of such clauses or pursuant the four consecutive fiscal quarters most recently ended prior to the first paragraph hereof. Accrual of interest, the accretion of accreted value, amortization of original issue discount, the payment of interest in the form of additional date on which such Debt is to be incurred (for which consolidated financial statements have been filed with the same terms Commission on Form 10-K or in the form of common stock of the Company, the payment of dividends on Capital Interests in the form of additional Capital Interests of the same class, the accretion of original issue discount or liquidation preference and increases in the amount of Debt outstanding solely as a result of fluctuations in the exchange rate of currencies or increases in the value of property securing Debt will not be deemed to be an Incurrence of Debt for purposes of this Section 4.9. Guarantees of or obligations in respect of letters of credit relating to Debt which is otherwise included in the determination of a particular amount of Debt shall not be included in the determination of such amount of Debt; provided, however, that the Incurrence of the Debt represented by such guarantee or letter of creditForm 10-Q, as the case may be, was in compliance or, if such filing is not permitted under the Exchange Act, with this covenant. For purposes of determining compliance with any U.S. dollar-denominated restriction the Trustee) shall have been less than 1.5:1, calculated on the Incurrence following assumptions: (1) such Debt and any other Debt (including, without limitation, Acquired Debt) incurred by the Company or any of its Subsidiaries since the first day of such four consecutive fiscal quarterly period had been incurred, and the application of the proceeds from such Debt (including to repay or retire other Debt) had occurred, on the first day of such period; (2) the repayment or retirement of any other Debt of the Company or any of its Subsidiaries since the first day of such four consecutive fiscal quarterly period had occurred on the first day of such period (except that, in making this computation, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency under any revolving credit facility, line of credit or similar facility shall be calculated computed based on upon the relevant currency exchange rate in effect on the date average daily balance of such Debt was Incurred, during such period); and (3) in the case of term debtany acquisition or disposition by the Company or any of its Subsidiaries of any asset or group of assets with a fair market value in excess of $1.0 million since the first day of such four consecutive fiscal quarterly period, whether by merger, stock purchase or sale or asset purchase or sale or otherwise, such acquisition or disposition had occurred as of the first committed day of such period with the appropriate adjustments with respect to such acquisition or disposition being included in such pro forma calculation. If the Debt giving rise to the need to make the calculation described above or any other Debt incurred after the first Incurred (whichever yields day of the lower U.S. dollar equivalent)relevant four-quarter period bears interest at a floating rate, in then, for purposes of calculating the case of revolving credit debt; provided that if Annual Debt Service Charge, the interest rate on such Debt is Incurred to refinance other Debt denominated in shall be computed on a foreign currency, and such refinancing pro forma basis by applying the average daily rate which would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate have been in effect on during the date entire such four consecutive fiscal quarterly period to the greater of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Debt does not exceed the principal amount of such Debt being refinanced. Notwithstanding any other provision outstanding at the end of this covenant, such period or the maximum average amount of Debt that the Company and its Restricted Subsidiaries may Incur pursuant to this covenant shall not be deemed to be exceeded, with respect to any outstanding Debt, solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Debt Incurred to refinance other Debt, if Incurred in a different currency from the Debt being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Debt is denominated that is in effect on the date of such refinancing. Neither the Company nor any Guarantor will Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priorityoutstanding during such period.

Limitation on Incurrence of Debt. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt); provided Debt); provided, however, that the Company and any of its Restricted Subsidiaries Guarantor may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Company’s Consolidated Fixed Charge Coverage Ratio of for the Company Company’s most recently ended Four-Quarter Period for which internal financial statements are available on or immediately preceding the date on which such additional Debt is Incurred, would be greater than 2.0 have been at least 2.00 to 1.0 (the “Ratio Test”) determined 1.00, calculated on a pro forma basis Pro Forma Basis (including a pro forma application of the net proceeds therefrom) and (b) no Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt; provided further that the aggregate amount of Debt (including Acquired Debt) that may be Incurred pursuant to the foregoing by Restricted Subsidiaries that are not Guarantors shall not exceed $20 0 million at the time of Incurrence at any one time outstanding). Notwithstanding the first paragraph aboveof this Section 4.9, the Company and its Restricted Subsidiaries may Incur Permitted Debt. For purposes of determining compliance with this Section 4.9, (Ax) Guarantees or obligations with respect to letters of credit supporting Debt need otherwise included in the determination of the amount of Debt shall not be Incurred solely by reference to one category of Permitted Debt described in clauses of the definition thereof or pursuant to the first paragraph of this covenant but is permitted to be Incurred in part under any combination thereof included and (By) in the event that an item of Debt (or any portion thereof) meets the criteria of more than one or more of the categories of Permitted Debt described and/or would have been permitted to have been Incurred pursuant to the first paragraph of this Section 4.9, the Company, in the clauses its sole discretion, may classify, and from time to time may reclassify, all or any portion of the definition thereof such item of Debt as being within one or is entitled more of such categories or as being Debt permitted to be Incurred pursuant to the first paragraph of this Section 4.9, ; provided that all Indebtedness outstanding under the Company shall, in its sole discretion, classify, or reclassify, or later divide, classify or reclassify, such item of Debt (or any portion thereof) in any manner that complies with this covenant and will only be required to include ABL Facility on the amount and type of such item of Debt in one of the Permitted Debt clauses or the first paragraph hereof and such item of Debt will Issue Date shall be treated as having been Incurred pursuant incurred under clause (i) of the definition of “Permitted Debt”. Debt permitted by this Section 4.9 need not be permitted solely by reference to only one provision permitting such Debt but may be permitted in part by one such provision and in part by one or more other provisions of this Section 4.9 permitting such clauses or pursuant to the first paragraph hereofDebt. Accrual The accrual of interestinterest and dividends, the accretion of accreted value, the accretion or amortization of original issue discount, the payment of interest on any Debt in the form of additional Debt with the same terms or in the form of common stock of the CompanyDebt, the payment of dividends on Capital Equity Interests in the form forms of additional Capital shares of Equity Interests of with the same classterms, the accretion and changes to amounts outstanding in respect of original issue discount or liquidation preference and increases in the amount of Debt outstanding Hedging Obligations solely as a result of fluctuations in the foreign currency exchange rate rates or interest rates or by reason of currencies or increases in the value of property securing Debt fees, indemnities and compensation payable thereunder will not be deemed to be an Incurrence of Debt for purposes of this Section 4.9. Guarantees of or obligations in respect of letters of credit relating to Debt which is otherwise included in the determination of a particular amount of Debt shall not be included in the determination of such amount of Debt; provided, however, that the Incurrence of the Debt represented by such guarantee or letter of credit, as the case may be, was in compliance with this covenant. For purposes of determining compliance with any U.S. dollarDollar-denominated restriction on the Incurrence of Debt, the U.S. dollarDollar-equivalent principal amount of Debt denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term debtDebt, or first committed or first Incurred (whichever yields the lower U.S. dollar equivalent)committed, in the case of revolving credit debt; provided Debt ;provided that if such Debt is Incurred to refinance other Debt denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollarDollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollarDollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Refinancing Debt does not exceed the principal amount of such Debt being refinancedrefinanced (plus interest or premiums, defeasance costs, underwriting discounts and fees and expenses incurred in connection therewith). Notwithstanding any other provision of this covenantSection 4.9, any increase in the maximum U.S. Dollar equivalent of outstanding Debt of the Company or any of its Restricted Subsidiaries denominated in a currency other than U.S. Dollars resulting from fluctuations in the exchange values of currencies will not be considered to be an Incurrence of Debt for purposes of this Section 4.9; provided that the amount of Debt that of the Company and its Restricted Subsidiaries may Incur pursuant to outstanding at any time for purposes of covenant compliance will be the U.S. Dollar equivalent of all such Debt of the Company and its Restricted Subsidiaries outstanding at such time. In the event an item of Debt (or any portion thereof) is Incurred as Permitted Debt on the same date that an item of Debt is Incurred under the first paragraph of this covenant shall not Section 4.9, then the Consolidated Fixed Charge Coverage Ratio will be deemed to be exceeded, calculated with respect to such Incurrence under the first paragraph of this Section 4.9 without regard to any outstanding Incurrence of such Permitted Debt. Unless the Company elects otherwise, solely the Incurrence of Debt will be deemed Incurred first under the first paragraph of this Section 4.9 to the extent permitted, with the balance Incurred as a result of fluctuations in the exchange rate of currenciesPermitted Debt. The principal amount of any Debt Incurred to refinance other DebtCompany will not, if Incurred in a different currency from the Debt being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Debt is denominated that is in effect on the date of such refinancing. Neither the Company nor and will not permit any Guarantor will Incur to Incur, any Debt that pursuant to its terms is subordinate or junior in right of payment to any other Debt of the Company or such Guarantor, unless such Debt is also subordinated in right of payment to the Notes and or the Note Guarantees to Guarantee of such Guarantor, as the same extent; case may be, on substantially identical terms; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or by virtue of being secured to on a greater junior lien or lesser extent or with greater or lower prioritypriority basis.

Limitation on Incurrence of Debt. The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt); provided that the Company Issuer and any of its Restricted Subsidiaries that is a Guarantor may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Consolidated Fixed Charge Coverage Ratio of the Company Issuer would be greater than 2.0 (i) on or prior to 1.0 June 30, 2011, 2.0:1.0, (the “Ratio Test”ii) determined following June 30, 2011 and on a pro forma basis or prior to June 30, 2012, 2.25:1.0 and (including a pro forma application of the net proceeds therefromiii) following June 30, 2012, 2.5:1.0 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt; provided further that the aggregate amount of Debt (including Acquired Debt) that may be Incurred pursuant to the foregoing by Restricted Subsidiaries that are not Guarantors shall not exceed $20 0 million at the time of Incurrence at any one time outstanding. Notwithstanding the first paragraph above, the Company Issuer and its Restricted Subsidiaries may Incur Permitted Debt. For purposes of determining compliance with this Section 4.9, (Ax) Debt need not outstanding or Incurred under any Credit Facility on the Issue Date shall at all times be treated as Incurred solely by reference pursuant to one category of Permitted Debt described in clauses clause (i) of the definition thereof of “Permitted Debt,” and may not be re-classified, (y) Guarantees or pursuant obligations with respect to letters of credit supporting Debt otherwise included in the first paragraph determination of this covenant but is permitted to such particular amount shall not be Incurred in part under any combination thereof included and (Bz) except as provided above, in the event that an item of Debt (or any portion thereof) meets the criteria of more than one or more of the types of Debt described above, including categories of Permitted Debt described in the clauses of the definition thereof or is entitled to be Incurred pursuant to and the first paragraph of this Section 4.9, the Company shallIssuer, in its sole discretion, shall classify, or and from time to time may reclassify, or later divide, classify or reclassify, such item of Debt (all or any portion thereof) in any manner that complies with this covenant and will only be required to include the amount and type of such item of Debt in and may divide an item into more than one type of the Permitted Debt clauses or the first paragraph hereof and such item of Debt will be treated as having been Incurred pursuant to only one of such clauses or pursuant to the first paragraph hereofDebt. Accrual The accrual of interest, the accretion of accreted value, or amortization of original issue discount, discount and the payment of interest on Debt in the form of additional Debt with the same terms Debt, or in the form of common stock of the Company, the payment of dividends on Capital Interests in the form of additional shares of Capital Interests of with the same class, terms or the accretion reclassification of original issue discount or liquidation preference and increases Capital Interests as Debt due to a change in the amount of Debt outstanding solely as a result of fluctuations in the exchange rate of currencies or increases in the value of property securing Debt GAAP will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this Section 4.9. Guarantees of or obligations in respect of letters of credit relating to Debt which is otherwise included in the determination of a particular amount of Debt shall not be included in the determination of such amount of Debt; provided, however, that the Incurrence of the Debt represented by such guarantee or letter of credit, as the case may be, was in compliance with this covenant. For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term debtDebt, or first committed or first Incurred (whichever yields the lower U.S. dollar equivalent)committed, in the case of revolving credit debtDebt; provided that if such Debt is Incurred to refinance other Debt denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Debt does not exceed the principal amount of such Debt being refinanced. Notwithstanding any other provision of this covenant, the maximum amount of Debt that the Company and its Restricted Subsidiaries may Incur pursuant to this covenant shall not be deemed to be exceeded, with respect to any outstanding Debt, solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Debt Incurred to refinance other Debt, if Incurred in a different currency from the Debt being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Debt is denominated that is in effect on the date of such refinancing. Neither the Company nor any Guarantor will Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.

Limitation on Incurrence of Debt. The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt); provided provided, however, that the Company Issuer and any of its Restricted Subsidiaries Guarantor may Incur Debt (including Acquired Debt) if, the Issuer’s Consolidated Total Net Leverage Ratio for the most recently ended Four-Quarter Period for which internal financial statements are available on or immediately after giving effect to preceding the Incurrence of date on which such additional Debt and the receipt and application of the proceeds therefromis Incurred, (a) the Consolidated Fixed Charge Coverage Ratio of the Company would be have been no greater than 2.0 5.25 to 1.0 (the “Ratio Test”) determined 1.00, calculated on a pro forma basis Pro Forma Basis (including a pro forma application of the net proceeds therefrom) and (b) no Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt; provided further that the aggregate amount of Debt (including Acquired Debt) that may be Incurred pursuant to the foregoing by Restricted Subsidiaries that are not Guarantors shall not exceed $20 0 million at the time of Incurrence at any one time outstanding). Notwithstanding the first paragraph aboveof this Section 4.9, the Company Issuer and its Restricted Subsidiaries may Incur Permitted Debt. For purposes of determining compliance with this Section 4.9, (Ax) Guarantees or obligations with respect to letters of credit supporting Debt need otherwise included in the determination of the amount of Debt shall not be Incurred solely by reference to one category of Permitted Debt described in clauses of the definition thereof or pursuant to the first paragraph of this covenant but is permitted to be Incurred in part under any combination thereof included and (By) in the event that an item of Debt (or any portion thereof) meets the criteria of more than one or more of the categories of Permitted Debt described and/or would have been permitted to have been Incurred pursuant to the first paragraph of this Section 4.9, the Issuer, in the clauses its sole discretion, may classify, and from time to time may reclassify, all or any portion of the definition thereof such item of Debt as being within one or is entitled more of such categories or as being Debt permitted to be Incurred pursuant to the first paragraph of this Section 4.9, ; provided that all Debt outstanding (x) under the Company shall, in its sole discretion, classify, or reclassify, or later divide, classify or reclassify, such item of Debt (or any portion thereof) in any manner that complies with this covenant and will only be required to include ABL Credit Facility on the amount and type of such item of Debt in one of the Permitted Debt clauses or the first paragraph hereof and such item of Debt will Escrow Release Date shall be treated as having been Incurred pursuant incurred on the Escrow Release Date under clause (i) of the definition of “Permitted Debt” and (y) in respect of the 2018 Senior Secured Notes on the Escrow Release Date shall be treated as incurred on the Escrow Release Date under clause (xxvii) of the definition of “Permitted Debt”. Debt permitted by this Section 4.9 need not be permitted solely by reference to only one provision permitting such Debt but may be permitted in part by one such provision and in part by one or more other provisions of this Section 4.9 permitting such clauses or pursuant to the first paragraph hereofDebt. Accrual The accrual of interestinterest and dividends, the accretion of accreted value, the accretion or amortization of original issue discount, the payment of interest on any Debt in the form of additional Debt with the same terms or in the form of common stock of the Company(including any PIK Payment), the payment of dividends on Capital Equity Interests in the form forms of additional Capital shares of Equity Interests of with the same classterms, the accretion and changes to amounts outstanding in respect of original issue discount or liquidation preference and increases in the amount of Debt outstanding Hedging Obligations solely as a result of fluctuations in the foreign currency exchange rate rates or interest rates or by reason of currencies or increases in the value of property securing Debt fees, indemnities and compensation payable thereunder will not be deemed to be an Incurrence of Debt for purposes of this Section 4.9. Guarantees of or obligations in respect of letters of credit relating to Debt which is otherwise included in the determination of a particular amount of Debt shall not be included in the determination of such amount of Debt; provided, however, that the Incurrence of the Debt represented by such guarantee or letter of credit, as the case may be, was in compliance with this covenant. For purposes of determining compliance with any U.S. dollarDollar-denominated restriction on the Incurrence of Debt, the U.S. dollarDollar-equivalent principal amount of Debt denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term debtDebt, or first committed or first Incurred (whichever yields the lower U.S. dollar equivalent)committed, in the case of revolving credit debtDebt; provided that if such Debt is Incurred to refinance other Debt denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollarDollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollarDollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Refinancing Debt does not exceed the principal amount of such Debt being refinancedrefinanced (plus interest or premiums, defeasance costs, underwriting discounts and fees and expenses incurred in connection therewith). Notwithstanding any other provision of this covenantSection 4.9, any increase in the maximum U.S. Dollar equivalent of outstanding Debt of the Issuer or any of its Restricted Subsidiaries denominated in a currency other than U.S. Dollars resulting from fluctuations in the exchange values of currencies will not be considered to be an Incurrence of Debt for purposes of this Section 4.9; provided that the amount of Debt that of the Company Issuer and its Restricted Subsidiaries may Incur pursuant to outstanding at any time for purposes of covenant compliance will be the U.S. Dollar equivalent of all such Debt of the Issuer and its Restricted Subsidiaries outstanding at such time. In the event an item of Debt (or any portion thereof) is Incurred as Permitted Debt on the same date that an item of Debt is Incurred under the first paragraph of this covenant shall not Section 4.9, then the Consolidated Total Net Leverage Ratio will be deemed to be exceeded, calculated with respect to such Incurrence under the first paragraph of this Section 4.9 without regard to any outstanding Incurrence of such Permitted Debt. Unless the Issuer elects otherwise, solely the Incurrence of Debt will be deemed Incurred first under the first paragraph of this Section 4.9 to the extent permitted, with the balance Incurred as a result of fluctuations in the exchange rate of currenciesPermitted Debt. The principal amount of any Debt Incurred to refinance other DebtIssuer will not, if Incurred in a different currency from the Debt being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Debt is denominated that is in effect on the date of such refinancing. Neither the Company nor and will not permit any Guarantor will Incur to Incur, any Debt that pursuant to its terms is subordinate or junior in right of payment to any other Debt of the Issuer or such Guarantor, unless such Debt is also subordinated in right of payment to the Notes and or the Note Guarantees to Guarantee of such Guarantor, as the same extentcase may be, on substantially identical terms; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or by virtue of being secured to on a greater junior lien or lesser extent or with greater or lower prioritypriority basis.