|
<br />200806452
<br />
<br />The amount of any Indebtedness outstanding as of any date will be:
<br />
<br />(a) the accreted value of the Indebtedness, in the case of any Indebtedness
<br />issued with original issue discount;
<br />
<br />(b) the principal amount of and premium (if any) on the Indebtedness, in the
<br />case of any other Indebtedness; and
<br />
<br />(c) in respect of Indebtedness of other Persons secured by a Lien on the assets
<br />of the specified Person, the lesser of:
<br />
<br />(i) the Fair Market Value of such asset at such date of determination,
<br />
<br />and
<br />
<br />(ii) the amount of such Indebtedness of such other Persons.
<br />
<br />"Indemnified Liabilities" shall mean, collectively, any and all liabilities, obligations,
<br />losses, damages (including natural resource damages), penalties, claims (including
<br />Environmental Claims), costs (including the costs of any investigation, study, sampling, testing,
<br />abatement, cleanup, removal, remediation or other response action necessary to remove,
<br />remediate, clean up or abate any Hazardous Materials Activity), expenses and disbursements of
<br />any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for
<br />Indemnitees in connection with any investigative, administrative or judicial proceeding
<br />commenced or threatened by any Person, and any fees or expenses incurred by Indemnitees in
<br />enforcing this indemnity), whether direct, indirect or consequential and whether based on
<br />Environmental Laws, on common law or equitable cause or on contract or otherwise, that may be
<br />imposed on, incurred by, or asserted against any such Indemnitee, in any manner relating to or
<br />arising out of any Environmental Claim or any Hazardous Materials Activity relating to or
<br />arising from, directly or indirectly, any past or present activity, operation, land ownership, or
<br />practice of the Company.
<br />
<br />"Indenture" shall mean the Trust Indenture, dated as of June I, 2008, between the Issuer
<br />and the Trustee, including all amendments thereof or supplements thereto.
<br />
<br />"Independent Counsel" shall mean an attorney duly admitted to practice law before the
<br />highest court of any state or the District of Columbia and who is not a full-time employee,
<br />director or shareholder of the Issuer or the Company.
<br />
<br />"Investment Grade Rating" shall mean a rating equal to or higher than Baa3 (or the
<br />equivalent) by Moody's, BBB- (or the equivalent) by S&P or BBB (or the equivalent) by Fitch.
<br />
<br />"Investments" shall mean, with respect to any Person, all direct or indirect investments by
<br />such Person in other Persons (including Affiliates) in the forms of loans (including guarantees or
<br />similar obligations), advances or capital contributions (excluding payroll, commission, travel and
<br />similar advances to officers and employees made in the ordinary course of business), purchases
<br />or other acquisitions for consideration of Indebtedness, Equity Interests or other securities,
<br />together with all items that are or would be classified as investments on a balance sheet prepared
<br />in accordance with GAAP. "Investment" shall exclude extensions of trade credit by the
<br />
<br />4834-8191-0786.7
<br />
<br />11
<br />
|