Exhibit 10.47

EXECUTION VERSION

 

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SENIOR

BRIDGE LOAN

CREDIT AGREEMENT

dated as of

June 28, 2007

among

EQUINIX, INC.

as Company,

THE GUARANTORS named herein,

THE LENDERS named herein

and

CITIBANK, N.A., as Agent

Cahill Gordon & Reindel LLP

80 Pine Street

New York, New York 10005

 

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TABLE OF CONTENTS

 

				Page
RECITALS				1
SECTION 1		DEFINITIONS		1
1.1		Certain Defined Terms		1
1.2		Accounting Terms		38
1.3		Other Definitional Provisions; Anniversaries		38
1.4		LIBOR Unavailable		38
SECTION 2		AMOUNT AND TERMS OF LOAN COMMITMENT AND LOANS; NOTES		38
2.1		Bridge Loan and Bridge Note		38
2.2		Term Loan and Term Note		40
2.3		Interest on the Loans		40
2.4		Fees		42
2.5		Prepayments and Payments		42
2.6		Margin Regulations		46
SECTION 3		CONDITIONS		46
3.1		Conditions to Effectiveness of This Agreement		46
3.2		Conditions to Making of Bridge Loan		48
SECTION 4		REPRESENTATIONS AND WARRANTIES		49
4.1		Organization and Good Standing; Capitalization		49
4.2		Authorization and Power		50
4.3		No Conflicts or Consents		50
4.4		Enforceable Obligations		50
4.5		Properties; Liens		51
4.6		Financial Condition		51
4.7		Full Disclosure		52
4.8		No Default		52
4.9		Compliance with Organizational Documents		52
4.10		No Litigation		52
4.11		Margin Stock, Etc.		53
4.12		Taxes		53
4.13		ERISA		53
4.14		Compliance with Law		53
4.15		Capital Structure and Subsidiaries		54
4.16		Intellectual Property		54
4.17		Environmental Matters		54
4.18		Permits		55
4.19		Insurance		56

 

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				Page
4.20		Labor Matters		56
4.21		Investment Company Act		56
SECTION 5		AFFIRMATIVE COVENANTS		56
5.1		Financial Statements and Other Reports		56
5.2		Corporate Existence, Etc.		58
5.3		Payment of Taxes and Claims; Tax Consolidation		59
5.4		Maintenance of Properties; Insurance		59
5.5		Inspection		59
5.6		Use of Proceeds		60
5.7		Compliance with Laws, Etc.		60
5.8		Maintenance of Accurate Records, Etc.		60
5.9		Take-Out Financing		60
5.10		Exchange of Term Notes		61
5.11		Payments in U.S. Dollars		62
5.12		Lenders Meeting		62
5.13		Payments for Consent		62
5.14		Delisting and Reregistration as a Private Company		62
5.15		Compulsory Acquisition Procedures		63
5.16		The Offer and Related Matters		63
5.17		The Scheme and Related Matters		64
5.18		Syndication		65
SECTION 6		NEGATIVE COVENANTS		66
6.1		Indebtedness		66
6.2		Liens		67
6.3		Restricted Payments		68
6.4		[Reserved]		70
6.5		Restriction on Fundamental Changes		70
6.6		Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries		73
6.7		Transactions with Affiliates		75
6.8		Business Activities		76
6.9		Asset Sales		76
6.10		Limitation on Preferred Stock of Domestic Restricted Subsidiaries		76
6.11		Additional Guarantees		76
SECTION 7		EVENTS OF DEFAULT		77
7.1		Failure To Make Payments When Due		77
7.2		Default in Other Agreements		77
7.3		Breach of Certain Covenants		77
7.4		Breach of Warranty		77
7.5		Other Defaults Under Agreement or Loan Documents		78
7.6		Involuntary Bankruptcy; Appointment of Custodian, Etc.		78
7.7		Voluntary Bankruptcy; Appointment of Custodian, Etc.		78

 

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				Page
7.8		Judgments and Attachments		79
7.9		Guarantee		79
SECTION 8		THE AGENT		81
8.1		Appointment		81
8.2		Delegation of Duties		81
8.3		Exculpatory Provisions		82
8.4		Reliance by Agent		82
8.5		Notice of Default		83
8.6		Non-Reliance on Agent and Other Lenders		83
8.7		Indemnification		83
8.8		Agent in Its Individual Capacity		84
8.9		Resignation of the Agent; Successor Agent		84
SECTION 9		GUARANTEE		84
9.1		Unconditional Guarantee		84
9.2		Severability		85
9.3		Release of a Guarantor		85
9.4		Limitation of Guarantor’s Liability		86
9.5		Guarantors May Consolidate, etc., on Certain Terms		86
9.6		Contribution		86
9.7		Waiver of Subrogation		87
9.8		Evidence of Guarantee		87
9.9		Waiver of Stay, Extension or Usury Laws		87
SECTION 10		MISCELLANEOUS		88
10.1		Representation of the Lenders		88
10.2		Participations in and Assignments of Loans and Notes		88
10.3		Expenses		89
10.4		Indemnity		89
10.5		Setoff		90
10.6		Amendments and Waivers		90
10.7		Independence of Covenants		91
10.8		Entirety		91
10.9		Notices		91
10.10		Survival of Warranties and Certain Agreements		91
10.11		Failure or Indulgence Not Waiver; Remedies Cumulative		92
10.12		Severability		92
10.13		Headings		92
10.14		Applicable Law		92
10.15		Successors and Assigns; Subsequent Holders of Notes		92
10.16		Counterparts; Effectiveness		93
10.17		Consent to Jurisdiction; Venue; Waiver of Jury Trial		93
10.18		Payments Pro Rata		94
10.19		Taxes and Other Taxes		94

 

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				Page
10.20		Waiver of Stay, Extension or Usury Laws		95
10.21		Requirements of Law		96
10.22		Confidentiality		96
SIGNATURE PAGES				S-1

 

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				Page
SCHEDULES
1.1		Commitments
4.1		Subsidiaries
4.5		Existing Liens
6.1		Existing Indebtedness
6.4		Certain Investments
EXHIBITS
I		FORM OF BRIDGE NOTE
II		FORM OF TERM NOTE
III		FORM OF NOTICE OF BORROWING
IV		FORM OF DESCRIPTION OF SENIOR NOTES
V		FORM OF REGISTRATION RIGHTS AGREEMENT
VI-A		FORM OF OPINION OF BRANDI GALVIN MORANDI, GENERAL COUNSEL OF THE COMPANY
VI-B		FORM OF OPINION OF SHEARMAN & STERLING, COUNSEL FOR THE COMPANY AND GUARANTORS
VII		FORM OF GUARANTEE

 

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This Senior Bridge Loan Credit Agreement is dated as of June 28, 2007 and entered into by and between EQUINIX, INC., a Delaware corporation (the “Company”), the Guarantors named on the signature pages hereto, the Lenders named on the signature pages hereto (the “Lenders”), and CITIBANK, N.A. (“Citibank”), as agent for the Lenders (in such capacity, the “Agent”).

RECITALS

WHEREAS, the Company desires that the Lenders extend a senior bridge loan credit facility to the Company in connection with the Acquisition (as defined herein);

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereby agree as follows:

SECTION 1 DEFINITIONS

1.1 Certain Defined Terms The following terms used in this Agreement shall have the following meanings:

“Acquired Business” means Target and its subsidiaries.

“Acquisition” means the acquisition of the Target, directly or indirectly, by the Company.

“Acquired Indebtedness” means Indebtedness of a Person or any of its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary of the Company or at the time it merges or consolidates with or into the Company or any of its Subsidiaries or assumed in connection with the acquisition of assets from such Person and in each case not incurred by such Person in connection with, or in anticipation or contemplation of, such Person becoming a Restricted Subsidiary of the Company or such acquisition, merger or consolidation.

“Affiliate” means, with respect to any specified Person, any other Person who directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person. The term “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; and the terms “controlling” and “controlled” have meanings correlative of the foregoing.

“Agent” has the meaning ascribed to such term in the introduction to this Agreement.

“Agreement” means this Senior Bridge Loan Credit Agreement dated as of June 28, 2007, as it may be amended, supplemented or otherwise modified from time to time in accordance with the terms hereof.

“Applicable Rate” means for each Interest Period the LIBOR Rate then in effect.

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“Applicable Spread” means 3.50% for the period from and including the Closing Date and to but excluding the three month anniversary of the Closing Date and for each subsequent 3-month period, the Applicable Spread in effect for the immediately preceding 3-month period plus 0.5%.

“Asset Acquisition” means (a) an Investment by the Company or any Restricted Subsidiary of the Company in any other Person pursuant to which such Person shall become a Restricted Subsidiary of the Company or any Restricted Subsidiary of the Company, or shall be merged with or into the Company or any Restricted Subsidiary of the Company, or (b) the acquisition by the Company or any Restricted Subsidiary of the Company of the assets of any Person (other than a Restricted Subsidiary of the Company) which constitute all or substantially all of the assets of such Person or comprises any division or line of business of such Person or any other properties or assets of such Person other than in the ordinary course of business.

“Asset Sale” means any direct or indirect sale, issuance, conveyance, transfer, lease (other than operating leases entered into in the ordinary course of business), assignment or other transfer for value by the Company or any of its Restricted Subsidiaries (including any Sale and Leaseback Transaction) to any Person other than the Company or a Wholly Owned Restricted Subsidiary of the Company of: (a) any Capital Stock of any Restricted Subsidiary of the Company; or (b) any other property or assets of the Company or any Restricted Subsidiary of the Company other than in the ordinary course of business; provided, however, that asset sales or other dispositions shall not include: (1) a transaction or series of related transactions for which the Company or its Restricted Subsidiaries receive aggregate consideration of less than $5.0 million; (2) the sale, lease, conveyance, disposition or other transfer of all or substantially all of the assets of the Company as permitted under Section 6.5; (3) any Restricted Payment permitted by Section 6.3 or, after the Conversion Date, that constitutes a Permitted Investment; (4) the sale or discount, in each case without recourse, of accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof; (5) disposals or replacements of obsolete or worn out equipment; (6) the grant of Liens not prohibited by this Agreement; (7) the licensing of intellectual property; (8) dispositions of accounts receivable to local distribution companies under guaranteed receivables agreements entered into in the ordinary course of business; (9) the sale of inventory in the ordinary course of business; (10) the sale of the Singapore E-mail Business in an amount not to exceed $2.0 million; and (11) Sale and Leaseback Transactions permitted under clause (o) of the definition of “Permitted Indebtedness”.

“Availability Period” means (a) in the case of each Offer Loan, the period commencing on the Effective Date and ending on the final date of the Offer Certain Funds Period and (b) in the case of each Scheme Loan, the period commencing on the Effective Date and ending on the final date of the Scheme Certain Funds Period.

“Average Life” means, as of the date of determination, with respect to any Indebtedness or Preferred Stock, the quotient obtained by dividing (a) the sum of the products of the numbers of years from the date of determination to the dates of each successive scheduled principal payment of such Indebtedness or redemption or similar payment with respect to such Preferred Stock multiplied by the amount of such payment by (b) the sum of all such payments.

 

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“Bank Facility” means the Second Amended and Restated Loan and Security Agreement, by and among the Company, Equinix Operating Co. Inc. the lenders party thereto in their capacities as lenders thereunder and Silicon Valley Bank, as administrative agent, together with the related documents thereto (including, without limitation, any guarantee agreements and security documents), in each case as such agreements may be amended (including any amendment and restatement thereof), supplemented or otherwise modified from time to time, including one or more credit agreements, loan agreements or similar agreements (but excluding debt securities) extending the maturity of, refinancing, replacing or otherwise restructuring (including increasing the amount of available borrowings thereunder or adding Restricted Subsidiaries of the Company as additional borrowers or guarantors thereunder) all or any portion of the Indebtedness under such agreement or agreements or any successor or replacement agreement or agreements and whether by the same or any other agent, lender or group of lenders.

“Bankruptcy Law” means Title 11 of the United States Code entitled “Bankruptcy”, as now and hereafter in effect, or any successor statute or any other United States federal, state or local law or the law of any other jurisdiction relating to bankruptcy, insolvency, winding up, liquidation, reorganization or relief of debtors, whether in effect on the date hereof or hereafter.

“Bankruptcy Order” means any court order made in a proceeding pursuant to or within the meaning of any Bankruptcy Law, containing an adjudication of bankruptcy or insolvency, or providing for liquidation, winding up, dissolution or reorganization, or appointing a custodian of a debtor or of all or any substantial part of a debtor’s property, or providing for the staying, arrangement, adjustment or composition of indebtedness or other relief of a debtor.

“Bidco” means Equinix (UK) Limited, a Wholly Owned Restricted Subsidiary of the Company formed under the laws of England and Wales.

“Board of Directors” means, as to any Person, the board of directors (or similar governing body) of such Person or any duly authorized committee thereof.

“Board Resolution” means, with respect to any Person, a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the Agent.

“Bridge Loan” means, collectively, the loans made by the Lenders pursuant to Section 2.1(a) consisting of Offer Loans or Scheme Loans

“Bridge Loan Commitment” means the commitment of the Lenders to make the Bridge Loan as set forth in Section 2.1(a) consisting of the Offer Commitments and the Scheme Commitments.

“Bridge Notes” has the meaning ascribed to such term in Section 2.1(d) and attached as Exhibit I.

 

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“Business Day” means any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of New York, New York or is a day on which banking institutions therein located are authorized or required by law or other governmental action to close; provided, however, that when used in connection with LIBOR Rate, the term “Business Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.

“Capital Stock” means: (a) with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, including each class of Common Stock and Preferred Stock of such Person, and all options, warrants or other rights to purchase or acquire any of the foregoing; and (b) with respect to any Person that is not a corporation, any and all partnership, membership or other equity interests of such Person, and all options, warrants or other rights to purchase or acquire any of the foregoing.

“Capitalized Lease Obligations” means, as to any Person, the obligations of such Person under a lease that are required to be classified and accounted for as capital lease obligations under GAAP and, for purposes of this definition, the amount of such obligations at any date shall be the capitalized amount of such obligations at such date, determined in accordance with GAAP.

“Cash Equivalents” means:

(a) debt securities denominated in euro, pounds sterling or U.S. dollars to be issued or directly and fully guaranteed or insured by the government of a Participating Member State, the U.K. or the U.S., as applicable, where the debt securities have not more than twelve months to final maturity and are not convertible into any other form of security;

(b) commercial paper denominated in euro, pounds sterling or U.S. dollars maturing no more than one year from the date of creation thereof and, at the time of acquisition, having a rating of at least P1 from Moody’s and A1 from Standard & Poor’s;

(c) certificates of deposit denominated in euro, pounds sterling or U.S. dollars having not more than twelve months to maturity issued by a bank or financial institution incorporated or having a branch in a Participating Member State in the United Kingdom or the United States, provided that the bank is rated P1 by Moody’s or A1 by Standard & Poor’s;

(d) any cash deposit denominated in euro, pounds sterling or U.S. dollars with any commercial bank or other financial institution, in each case whose long term unsecured, unsubordinated debt rating is at least Aa3 by Moody’s or AA by Standard & Poor’s;

(e) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clause (a) above entered into with any bank or financial institution meeting the qualifications specified in clause (d) above; and

(f) investments in money market funds which invest substantially all their assets in securities of the types described in clauses (a) through (e) above.

 

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“Certain Funds Period” means the Scheme Certain Funds Period or, after an Election has occurred, the Offer Certain Funds Period.

“Change of Control” means the occurrence of one or more of the following events:

(a) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets of the Company to any Person or group of related Persons for purposes of Section 13(d) of the Exchange Act (a “Group”), together with any Affiliates thereof (whether or not otherwise in compliance with the provisions of this Agreement);

(b) the approval by the holders of Capital Stock of the Company of any plan or proposal for the liquidation or dissolution of the Company (whether or not otherwise in compliance with the provisions of this Agreement);

(c) any Person or Group shall become the owner, directly or indirectly, beneficially or of record, of shares representing more than 50% of the aggregate ordinary voting power represented by the issued and outstanding Capital Stock of the Company; or

(d) the replacement of a majority of the Board of Directors of the Company over a two-year period from the directors who constituted the Board of Directors of the Company at the beginning of such period, and such replacement shall not have been approved by a vote of at least a majority of the Board of Directors of the Company, then still in office who either were members of such Board of Directors at the beginning of such period or whose election as a member of such Board of Directors was previously so approved.

“Change of Control Date” has the meaning ascribed to such term in Section 2.5(a)(4).

“Change of Control Offer” has the meaning ascribed to such term in Section 2.5(a)(4).

“Closing Date” means the date on which the Bridge Loans are made in accordance with this Agreement.

“Commission” means the Securities and Exchange Commission.

“Common Stock” of any Person means any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or non-voting) of such Person’s common stock, whether outstanding on the Closing Date or issued after the Closing Date, and includes, without limitation, all series and classes of such common stock.

“Companies Act 1985” means the Companies Act 1985 of England and Wales, as amended.

 

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“Companies Act 2006” means the Companies Act 2006 of England and Wales, as amended.

“Companies House” means the Companies House, an executive agency of the UK Department of Trade and Industry.

“Company” has the meaning ascribed to such term in the introduction to this Agreement.

“Completion” means the completion of the acquisition of 100% of the Capital Stock of the Target.

“Completion Date” means the date on which Completion occurs.

“Compulsory Acquisition Procedures” means the procedures set out for the compulsory acquisition of minority shares in Chapter 3 of Part 28 to the Companies Act 2006.

“Consolidated Depreciation, Amortization and Accretion Expense” means with respect to any Person for any period, the total amount of depreciation, amortization and accretion expense, including the amortization of deferred financing fees or costs of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.

“Consolidated EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period:

(a) increased (without duplication) by the following, in each case to the extent deducted in determining Consolidated Net Income for such period:

(1) provision for taxes based on income or profits or capital, including, without limitation, state, franchise and similar taxes and foreign withholding taxes (including any levy, impost, deduction, charge, rate, duty, compulsory loan or withholding which is levied or imposed by a governmental agency, and any related interest, penalty, charge, fee or other amount) of such Person paid or accrued during such period deducted (and not added back) in computing Consolidated Net Income; plus

(2) Consolidated Interest Expense of such Person for such period to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income; plus

(3) Consolidated Depreciation, Amortization and Accretion Expense of such Person for such period to the extent that the same were deducted (and not added back) in computing Consolidated Net Income; plus

(4) any expenses or charges (other than depreciation or amortization expense) related to any Equity Offering or the incurrence of Indebtedness permitted

 

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to be incurred in accordance with the Loan Documents (including a refinancing thereof) (whether or not successful), including (A) such fees, expenses or charges relating to the offering of the Demand Take-Out Notes and (B) any amendment or other modification of the Demand Take-Out Notes and, in each case, deducted (and not added back) in computing Consolidated Net Income; plus

(5) any other Non-cash Charges, including any provisions, provision increases, write-offs or write downs reducing Consolidated Net Income for such period (provided that if any such Non-cash Charges represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent), and excluding amortization of a prepaid cash item that was paid in a prior period; plus

(6) any costs or expense incurred by the Company or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of the Company or net cash proceeds of an issuance of Equity Interest of the Company (other than Disqualified Stock) solely to the extent that such net cash proceeds are excluded from the calculation set forth in paragraph (c) of Section 6.3; plus

(7) cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to clause (2) below for any previous period and not added back; plus

(8) any net loss from disposed or discontinued operations; plus

(9) (i) any net unrealized loss (after any offset) resulting in such period from obligations under any Currency Agreements and the application of FASB Standard No. 139 “Financial Instruments: Recognition and Measurement”; provided that to the extent any such Currency Agreement relates to items included in the preparation of the income statement (as opposed to the balance sheet, as reasonably determined by the Company), the realized loss on a Currency Agreement shall be included to the extent the amount of such hedge loss was excluded in a prior period; and (ii) any net unrealized loss (after any offset) resulting in such period from (A) currency translation or exchange losses including those (x) related to currency remeasurements of Indebtedness and (y) resulting from hedge agreements for currency exchange risk and (B) changes in the fair value of Indebtedness resulting from changes in interest rates; and

 

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(b) decreased (without duplication) by the following, in each case to the extent included in determining Consolidated Net Income for such period:

(1) non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period and any non-cash gains with respect to cash actually received in a prior period so long as such cash did not increase Consolidated EBITDA in such prior period; plus

(2) any net gain from disposed or discontinued operations; plus

(3) (i) any net unrealized gain (after any offset) resulting in such period from obligations under any Currency Agreements and the application of FASB Standard No. 139 “Financial Instruments: Recognition and Measurement”; provided that to the extent any such Currency Agreement relates to items included in the preparation of the income statement (as opposed to the balance sheet, as reasonably determined by the Company), the realized gain on a Currency Agreement shall be included to the extent the amount of such hedge gain was excluded in a prior period; and (ii) any net unrealized gain (after any offset) resulting in such period from (A) currency translation or exchange gains including those (x) related to currency remeasurements of Indebtedness and (y) resulting from hedge agreements for currency exchange risk and (B) changes in the fair value of Indebtedness resulting from changes in interest rates.

“Consolidated Fixed Charge Coverage Ratio” means, with respect to any Person, the ratio of Consolidated EBITDA of such Person during the four full fiscal quarters (the “Four Quarter Period”) ending prior to the date of the transaction giving rise to the need to calculate the Consolidated Fixed Charge Coverage Ratio for which financial statements are available (the “Transaction Date”) to Consolidated Fixed Charges of such Person for the Four Quarter Period. In addition to and without limitation of the foregoing, for purposes of this definition, “Consolidated EBITDA” and “Consolidated Fixed Charges” shall be calculated after giving effect on a pro forma basis for the period of such calculation to:

(a) the incurrence or repayment of any Indebtedness of such Person or any of its Restricted Subsidiaries (and the application of the proceeds thereof) giving rise to the need to make such calculation and any incurrence or repayment of other Indebtedness (and the application of the proceeds thereof), other than the incurrence or repayment of Indebtedness in the ordinary course of business for working capital purposes pursuant to working capital facilities, occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior to the Transaction Date, as if such incurrence or repayment, as the case may be (and the application of the proceeds thereof), occurred on the first day of the Four Quarter Period; and

(b) any asset sales or other dispositions or Asset Acquisitions (including, without limitation, any Asset Acquisition giving rise to the need to make such calculation as a result of such Person or one of its Restricted Subsidiaries (including any Person who becomes a Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming or otherwise being liable for Acquired Indebtedness and also including any Consolidated

 

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EBITDA (including any pro forma expense and cost reductions calculated on a basis consistent with Regulation S-X under the Exchange Act) attributable to the assets which are the subject of the Asset Acquisition or asset sale or other disposition during the Four Quarter Period) occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior to the Transaction Date, as if such asset sale or other disposition or Asset Acquisition (including the incurrence, assumption or liability for any such Acquired Indebtedness) occurred on the first day of the Four Quarter Period. If such Person or any of its Restricted Subsidiaries directly or indirectly guarantees Indebtedness of a third Person, the preceding sentence shall give effect to the incurrence of such guaranteed Indebtedness as if such Person or any Restricted Subsidiary of such Person had directly incurred or otherwise assumed such guaranteed Indebtedness.

Furthermore, in calculating “Consolidated Fixed Charges” for purposes of determining the denominator (but not the numerator) of this “Consolidated Fixed Charge Coverage Ratio”:

(a) interest on outstanding Indebtedness determined on a fluctuating basis as of the Transaction Date and which will continue to be so determined thereafter shall be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in effect on the Transaction Date; and

(b) notwithstanding clause (a) above, interest on Indebtedness determined on a fluctuating basis, to the extent such interest is covered by agreements relating to Interest Swap Obligations, shall be deemed to accrue at the rate per annum resulting after giving effect to the operation of such agreements.

“Consolidated Fixed Charges” means, with respect to any Person for any period, the sum, without duplication, of:

(a) Consolidated Interest Expense; plus

(b) the product of (1) the amount of all dividend payments on any series of Preferred Stock of such Person and, to the extent permitted under this Agreement, its Restricted Subsidiaries (other than dividends paid in Qualified Capital Stock and other than dividends paid by a Restricted Subsidiary of such Person to such Person or to a Wholly Owned Restricted Subsidiary of such Person) paid, accrued or scheduled to be paid or accrued during such period times (2) a fraction, the numerator of which is one and the denominator of which is one minus the then current effective consolidated federal, state and local income tax rate of such Person, expressed as a decimal.

“Consolidated Interest Expense” means, with respect to any Person for any period, the sum of, without duplication:

(a) the aggregate of the interest expense of such Person and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, including without limitation: (1) any amortization of debt discount and the amortization

 

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or write-off of deferred financing costs; (2) the net costs under Interest Swap Obligations; (3) all capitalized interest; and (4) the interest portion of any deferred payment obligation; plus

(b) the interest component of Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or accrued by such Person and its Restricted Subsidiaries during such period as determined on a consolidated basis in accordance with GAAP; less