Common use of Contribution Indebtedness Clause in Contracts

Contribution Indebtedness. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness (including Acquired Debt) or Disqualified Stock meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (23) of this Section 4.09(b), or is entitled to be incurred pursuant to Section 4.09(a) hereof, the Issuer will be permitted to divide and classify (or later divide, classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock in any manner that complies with this Section 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 may not be later classified or reclassified pursuant to Section 4.09(a) hereof. The accrual of interest, 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, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to 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 this covenant 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 is in effect on the date of such refinancing.

Contribution Indebtedness. (c) 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 4.094.03 and with Section 4.12, (A) Indebtedness need not be Incurred solely by reference to one category of permitted Indebtedness described in clauses (i) through (xxii) of Section 4.03(b) or pursuant to Section 4.03(a) but is permitted to be Incurred in part under any combination thereof and (B) in the event that an item of Indebtedness (including Acquired Debtor any portion thereof) or Disqualified Stock meets the criteria of one or more than one of the categories of Permitted Debt permitted Indebtedness described in clauses (1i) through (23xxii) of this Section 4.09(b), 4.03(b) or is entitled to be incurred Incurred pursuant to Section 4.09(a) hereof4.03(a), the Issuer will be permitted to divide and classify (or later divideCompany shall, in its sole discretion, classify or reclassify in whole or in part in its sole discretion(based on circumstances existing at the time of such reclassification) such item of Indebtedness (or Disqualified Stock any portion thereof) in any manner that complies with this Section 4.09 (including 4.03 and will only be required to include the amount and type of such item of Indebtedness in part one of the above clauses of Section 4.03(b) and such item of Indebtedness shall be treated as having been Incurred pursuant to only one of such clauses or more clauses and/or in part pursuant to Section 4.09(a) hereof4.03(a); provided, in each case in accordance with the provisions set forth in Section 4.17. Any however, that all Indebtedness under the Bank Credit Agreement outstanding on the Issue Date shall be considered incurred under deemed to have been Incurred pursuant to clause (i) of Section 4.09(b)(14.03(b) hereof and may the Company shall not be later classified permitted to reclassify all or reclassified any portion of Indebtedness Incurred pursuant to Section 4.09(a) hereofsuch 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. The accrual Accrual of interest, the accretion or of accreted value, amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same termsterms or in the form of common stock of the Company, and the payment of dividends on Disqualified Preferred Stock in the form of additional shares of Preferred Stock of the same class class, the accretion of Disqualified Stock will 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 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 Incurrence of Indebtedness for purposes of this Section 4.094.03. For purposes of determining any particular amount of IndebtednessGuarantees of, any Note Guarantees, Liens or obligations with in respect to of letters of creditcredit relating to, in each case, supporting Indebtedness which is otherwise included in the determination of such a 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 this covenant will shall not be deemed to be exceeded, with respect to any outstanding Indebtedness, due solely to the result of fluctuations included in the exchange rates determination of currencies. The principal such amount of any Indebtedness incurred to refinance other Indebtedness; provided, if incurred in a different currency from however, that the Incurrence of the Indebtedness being refinancedrepresented by such guarantee or letter of credit, shall be calculated based on as the currency exchange rate applicable to the currencies case may be, was in which such respective Indebtedness is denominated that is in effect on the date of such refinancingcompliance with this Section 4.03.

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 4.099.01, in the event that an item of Indebtedness (including Acquired Debt) or proposed Indebtedness, Disqualified Stock or preferred equity meets the criteria of more than one of the categories of Permitted Debt Indebtedness described in clauses (1i) through (23xv) of this Section 4.09(b), above or is entitled to be incurred pursuant to Section 4.09(a9.01(a) hereof, the Issuer 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 types of Indebtedness, Disqualified Stock or preferred equity and may later divide, classify reclassify all or reclassify in whole or in part in its sole discretion) a portion of such item of Indebtedness or Indebtedness, Disqualified Stock or preferred equity, in any manner that complies with this Section 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 may not be later classified or reclassified pursuant to Section 4.09(a) hereof9.01. The accrual of interestinterest 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, and 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 deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred equity for purposes of this Section 4.09, 9.01; provided, in each such casecase (other than preferred stock that is not Disqualified Stock), that the amount thereof of any such accrual, accretion or payment is included in Fixed Charges of the Issuer Borrower as accrued to the extent required by the definition of that termaccrued. 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 Notwithstanding any other provision of this Section 4.099.01, the maximum amount of Indebtedness that the Borrower or any Restricted Subsidiary may be incurred incur pursuant to this covenant will Section 9.01 shall not be deemed to be exceeded, with respect to any outstanding Indebtedness, due exceeded solely to the as a result of fluctuations in the exchange rates of currenciesor currency values. 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 is in effect on the outstanding as of any date of such refinancing.will be:

Contribution Indebtedness. For purposes of determining compliance with this Section 4.096.01, (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 (including Acquired Debtor any portion thereof) or Disqualified Stock meets the criteria of one or more than one of the categories of Permitted Debt permitted Indebtedness (or any portion thereof) described in clauses (1Sections 6.01(a) through (23) of this Section 4.09(bbb), or is entitled to be incurred pursuant to Section 4.09(a) hereofthe Borrower may, the Issuer will be permitted to divide and classify (or later dividein its sole discretion, classify or reclassify in whole or in part in its sole discretion) divide such item of Indebtedness (or Disqualified Stock any portion thereof) in any manner that complies with this Section 4.09 6.01 and will be entitled to only include the amount and type of such item of Indebtedness (including or any portion thereof) in part 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 one only such clause or more clauses and/or in part pursuant to Section 4.09(a) hereof(or any portion thereof); provided, in each case in accordance with the provisions set forth in Section 4.17. Any that all Indebtedness outstanding under the Bank Credit this Agreement on the Issue Date shall be considered incurred under Section 4.09(b)(1) hereof and may not be later classified or reclassified pursuant to Section 4.09(a) hereof. The accrual of interest, 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, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not at all times be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes have been incurred pursuant to clause (b) 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 6.01 and (C) 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 included1.07 shall apply. In addition, notwithstanding any other provision of this Section 4.09, the maximum amount of Indebtedness that may be incurred pursuant to this covenant will not be deemed to be exceeded, with respect to any outstanding Indebtedness, due solely Indebtedness that was permitted to the result of fluctuations in the exchange rates of currencies. The principal amount of any Indebtedness be 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 is in effect hereunder on the date of such refinancingincurrence, 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.