Common use of Contribution Indebtedness Clause in Contracts

Contribution Indebtedness. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of permitted Indebtedness (or any portion thereof) described in Sections 6.01(a) through (bb) but may be permitted in part under any relevant combination thereof (and subject to compliance, where relevant, with Section 6.02), (B) in the event that an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of permitted Indebtedness (or any portion thereof) described in Sections 6.01(a) through (bb), the Borrower may, in its sole discretion, classify or reclassify or divide such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 6.01 and will be entitled to only include the amount and type of such item of Indebtedness (or any portion thereof) in one of the above clauses (or any portion thereof) and such item of Indebtedness (or any portion thereof) shall be treated as having been incurred or existing pursuant to only such clause or clauses (or any portion thereof); provided, that all Indebtedness outstanding under this Agreement shall at all times be deemed to have been incurred pursuant to clause (b) of this Section 6.01 and (C) Section 1.07 shall apply. In addition, with respect to any Indebtedness that was permitted to be incurred hereunder on the date of such incurrence, any Increased Amount of such Indebtedness shall also be permitted hereunder after the date of such incurrence. This Agreement will not treat (1) unsecured Indebtedness as subordinated or junior in right of payment to secured Indebtedness merely because it is unsecured or (2) senior Indebtedness as subordinated or junior in right of payment to any other senior Indebtedness merely because it has a junior priority with respect to the same collateral.

Contribution Indebtedness. The Borrower will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Indebtedness) that is contractually subordinated in right of payment to any other Indebtedness of the Borrower such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Loans and the Guarantee Agreement on substantially identical terms and the Borrower will not incur any Indebtedness (including Permitted Indebtedness) that is contractually subordinated in right of payment to any other Indebtedness of the Borrower unless such Indebtedness is also contractually subordinated in right of payment to the Loans and the Guarantee Agreement on substantially identical terms; provided, however, that no Indebtedness shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Borrower solely by virtue of being unsecured or by virtue of being secured on a junior Lien basis. For purposes of determining compliance with this Section 6.019.01, (A) Indebtedness need not be permitted solely by reference to one category of permitted Indebtedness (or any portion thereof) described in Sections 6.01(a) through (bb) but may be permitted in part under any relevant combination thereof (and subject to compliance, where relevant, with Section 6.02), (B) in the event that an item of Indebtedness (proposed Indebtedness, Disqualified Stock or any portion thereof) preferred equity meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (i) through (xv) above or is entitled to be incurred pursuant to Section 9.01(a) hereof, the Borrower will be permitted to classify such item of Indebtedness, Disqualified Stock or preferred equity on the date of its incurrence and will only be required to include the amount and type of such Indebtedness, Disqualified Stock or preferred equity in one of the above clauses, although the Borrower may divide and classify an item of Indebtedness, Disqualified Stock or preferred equity in one or more of the categories types of permitted Indebtedness (Indebtedness, Disqualified Stock or any preferred equity and may later reclassify all or a portion thereof) described in Sections 6.01(a) through (bb), the Borrower may, in its sole discretion, classify or reclassify or divide of such item of Indebtedness (Indebtedness, Disqualified Stock or any portion thereof) preferred equity, in any manner that complies with this Section 6.01 9.01. The accrual of interest or dividends, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred equity as Indebtedness due to a change in accounting principles, the payment of dividends on Disqualified Stock or preferred equity in the form of additional shares of the same class of Disqualified Stock or preferred equity and unrealized losses or charges in respect of Hedging Obligations (including those resulting from the application of SFAS 133) will not be entitled deemed to only include the amount and type of such item be an incurrence of Indebtedness (or any portion thereof) in one an issuance of the above clauses (Disqualified Stock or any portion thereof) and such item preferred equity for purposes of Indebtedness (or any portion thereof) shall be treated as having been incurred or existing pursuant to only such clause or clauses (or any portion thereof)this Section 9.01; provided, in each such case (other than preferred stock that all is not Disqualified Stock), that the amount of any such accrual, accretion or payment is included in Fixed Charges of the Borrower as accrued. Notwithstanding any other provision of this Section 9.01, the maximum amount of Indebtedness outstanding under that the Borrower or any Restricted Subsidiary may incur pursuant to this Agreement Section 9.01 shall at all times not be deemed to have been incurred pursuant to clause (b) be exceeded solely as a result of this Section 6.01 and (C) Section 1.07 shall applyfluctuations in exchange rates or currency values. In addition, with respect to The amount of any Indebtedness that was permitted to be incurred hereunder outstanding as of any date will be: (1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount; (2) the principal amount of the Indebtedness, in the case of any other Indebtedness; and (3) 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 such incurrence, any Increased Amount determination; and (B) the amount of such the Indebtedness shall also be permitted hereunder after of the date of such incurrence. This Agreement will not treat (1) unsecured Indebtedness as subordinated or junior in right of payment to secured Indebtedness merely because it is unsecured or (2) senior Indebtedness as subordinated or junior in right of payment to any other senior Indebtedness merely because it has a junior priority with respect to the same collateralPerson.

Contribution Indebtedness. Any Indebtedness incurred under a revolving Credit Facility pursuant to clause (i) of Section 4.03(b) above shall be deemed for purposes of this Section 4.03 to have been incurred on the date such Indebtedness was first incurred until such Indebtedness is actually repaid, other than pursuant to “cash sweep” provisions or any similar provisions under any Credit Facility that provide that such Indebtedness is deemed to be repaid daily (or otherwise periodically). Notwithstanding the foregoing, the Company and the Guarantors may not Incur any Indebtedness pursuant to Section 4.03(b) if the proceeds thereof are used, directly or indirectly, to repay, prepay, redeem, defease, retire, refund or refinance any Subordinated Indebtedness unless such Indebtedness shall be subordinated to the Notes or such Guarantor’s Guarantee, as applicable, to at least the same extent as such Subordinated Indebtedness. For purposes of determining compliance with this Section 6.014.03 and with Section 4.12, (A) Indebtedness need not be permitted Incurred solely by reference to one category of permitted Indebtedness (or any portion thereof) described in Sections 6.01(aclauses (i) through (bbxxii) of Section 4.03(b) or pursuant to Section 4.03(a) but may is permitted to be permitted Incurred in part under any relevant combination thereof (and subject to compliance, where relevant, with Section 6.02), (B) in the event that an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of permitted Indebtedness (or any portion thereof) described in Sections 6.01(aclauses (i) through (bbxxii) of Section 4.03(b) or is entitled to be Incurred pursuant to Section 4.03(a), the Borrower mayCompany shall, in its sole discretion, classify or reclassify or divide (based on circumstances existing at the time of such reclassification) such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 6.01 4.03 and will only be entitled required to only include the amount and type of such item of Indebtedness (or any portion thereof) in one of the above clauses (or any portion thereofof Section 4.03(b) and such item of Indebtedness (or any portion thereof) shall be treated as having been incurred or existing Incurred pursuant to only one of such clause clauses or clauses (or any portion thereofpursuant to Section 4.03(a); provided, however, that all Indebtedness under the Credit Agreement outstanding under this Agreement on the Issue Date shall at all times be deemed to have been incurred Incurred pursuant to clause (bi) of Section 4.03(b) and the Company shall not be permitted to reclassify all or any portion of Indebtedness Incurred pursuant to such clause; provided further, however, that the Company shall not be permitted to reclassify any portion of any Secured Indebtedness unless the Lien is also permitted with respect to such Secured Indebtedness as so reclassified. Accrual of interest, the accretion of accreted value, amortization of original issue discount, the payment of interest in the form of additional Indebtedness with the same terms or in the form of common stock of the Company, the payment of dividends on Preferred Stock in the form of additional shares of Preferred Stock of the same class, the accretion of liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies or increases in the value of property securing Indebtedness described in clause (3) of the definition of “Indebtedness” shall not be deemed to be an Incurrence of Indebtedness for purposes of this Section 6.01 and (C) Section 1.07 4.03. Guarantees of, or obligations in respect of letters of credit relating to, Indebtedness which is otherwise included in the determination of a particular amount of Indebtedness shall apply. In addition, with respect to any Indebtedness that was permitted to not be incurred hereunder on included in the date determination of such incurrenceamount of Indebtedness; provided, any Increased Amount however, that the Incurrence of the Indebtedness represented by such Indebtedness shall also be permitted hereunder after guarantee or letter of credit, as the date of such incurrence. This Agreement will not treat (1) unsecured Indebtedness as subordinated or junior case may be, was in right of payment to secured Indebtedness merely because it is unsecured or (2) senior Indebtedness as subordinated or junior in right of payment to any other senior Indebtedness merely because it has a junior priority compliance with respect to the same collateralthis Section 4.03.

Contribution Indebtedness. For purposes of determining compliance with this Section 6.014.09, (A) Indebtedness need not be permitted solely by reference to one category of permitted Indebtedness (or any portion thereof) described in Sections 6.01(a) through (bb) but may be permitted in part under any relevant combination thereof (and subject to compliance, where relevant, with Section 6.02), (B) in the event that an item of Indebtedness (including Acquired Debt) or any portion thereof) Disqualified Stock meets the criteria of more than one or more of the categories of permitted Indebtedness (or any portion thereof) Permitted Debt described in Sections 6.01(aclauses (1) through (bb23) of this Section 4.09(b), or is entitled to be incurred pursuant to Section 4.09(a) hereof, the Borrower mayIssuer will be permitted to divide and classify (or later divide, classify or reclassify in whole or in part in its sole discretion, classify or reclassify or divide ) such item of Indebtedness (or any portion thereof) Disqualified Stock in any manner that complies with this Section 6.01 4.09 (including in part pursuant to one or more clauses and/or in part pursuant to Section 4.09(a) hereof), in each case in accordance with the provisions set forth in Section 4.17. Any Indebtedness under the Bank Credit Agreement on the Issue Date shall be considered incurred under Section 4.09(b)(1) hereof and will may not be entitled later classified or reclassified pursuant to only include Section 4.09(a) hereof. The accrual of interest, the amount accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and type the payment of such item dividends on Disqualified Stock in the form of Indebtedness (or any portion thereof) in one additional shares of the above clauses (or any portion thereof) and such item same class of Indebtedness (or any portion thereof) shall be treated as having been incurred or existing pursuant to only such clause or clauses (or any portion thereof); provided, that all Indebtedness outstanding under this Agreement shall at all times Disqualified Stock will not be deemed to have been be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Issuer as accrued to the extent required by the definition of that term. Further, the accounting reclassification of any obligation of the Issuer or any of its Restricted Subsidiaries as Indebtedness will not be deemed an incurrence of Indebtedness for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness, any Note Guarantees, Liens or obligations with respect to letters of credit, in each case, supporting Indebtedness otherwise included in the determination of such particular amount, will not be included. In addition, notwithstanding any other provision of this Section 4.09, the maximum amount of Indebtedness that may be incurred pursuant to clause (b) of this Section 6.01 and (C) Section 1.07 shall apply. In additioncovenant will not be deemed to be exceeded, with respect to any outstanding Indebtedness, due solely to the result of fluctuations in the exchange rates of currencies. 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 respective Indebtedness is denominated that was permitted to be incurred hereunder is in effect on the date of such incurrence, any Increased Amount of such Indebtedness shall also be permitted hereunder after the date of such incurrence. This Agreement will not treat (1) unsecured Indebtedness as subordinated or junior in right of payment to secured Indebtedness merely because it is unsecured or (2) senior Indebtedness as subordinated or junior in right of payment to any other senior Indebtedness merely because it has a junior priority with respect to the same collateralrefinancing.