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 4.03 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 (or any portion thereof) meets the criteria of one or more of the categories of permitted Indebtedness described in clauses (i) through (xxii) of Section 4.03(b) or is entitled to be Incurred pursuant to Section 4.03(a), the Company shall, in its sole discretion, classify or reclassify (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 4.03 and will only be required to include the amount and type of such item of Indebtedness in 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 pursuant to Section 4.03(a); provided, however, that all Indebtedness under the Credit Agreement outstanding on the Issue Date shall be deemed to have been Incurred pursuant to clause (i) 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 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 not be included in the determination of such amount of Indebtedness; provided, however, that the Incurrence of the Indebtedness represented by such guarantee or letter of credit, as the case may be, was in compliance with this Section 4.03.
Appears in 1 contract
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 4.03 and with Section 4.126.01, (A) Indebtedness need not be Incurred permitted solely by reference to one category of permitted Indebtedness (or any portion thereof) described in clauses (iSections 6.01(a) through (xxii) of Section 4.03(b) or pursuant to Section 4.03(abb) but is may be permitted to be 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 clauses (iSections 6.01(a) through (xxii) of Section 4.03(b) or is entitled to be Incurred pursuant to Section 4.03(abb), the Company shallBorrower may, in its sole discretion, classify or reclassify (based on circumstances existing at the time of such reclassification) or divide such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 4.03 6.01 and will be entitled to only be required to include the amount and type of such item of Indebtedness (or any portion thereof) in one of the above clauses of Section 4.03(b(or any portion thereof) and such item of Indebtedness (or any portion thereof) shall be treated as having been Incurred incurred or existing pursuant to only one of such clause or clauses (or pursuant to Section 4.03(aany portion thereof); provided, however, that all Indebtedness outstanding under the Credit this Agreement outstanding on the Issue Date shall at all times be deemed to have been Incurred incurred pursuant to clause (ib) of this Section 4.03(b6.01 and (C) and the Company Section 1.07 shall not be permitted to reclassify all or any portion of Indebtedness Incurred pursuant to such clause; provided furtherapply. In addition, 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 any Indebtedness that was permitted to be incurred hereunder on the date of such Secured 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 so reclassified. Accrual subordinated or junior in right of interest, the accretion payment to secured Indebtedness merely because it is unsecured or (2) senior Indebtedness as subordinated or junior in right of accreted value, amortization of original issue discount, the payment of interest in the form of additional to any other senior Indebtedness merely because it has a junior priority with respect to 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 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 not be included in the determination of such amount of Indebtedness; provided, however, that the Incurrence of the Indebtedness represented by such guarantee or letter of credit, as the case may be, was in compliance with this Section 4.03collateral.
Appears in 1 contract
Contribution Indebtedness. The Borrower will not incur, and will not permit any Guarantor to incur, any Indebtedness (cincluding Permitted Indebtedness) Any that is contractually subordinated in right of payment to any other Indebtedness incurred under a revolving Credit Facility pursuant of the Borrower such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to clause the Loans and the Guarantee Agreement on substantially identical terms and the Borrower will not incur any Indebtedness (iincluding Permitted Indebtedness) that is contractually subordinated in right of Section 4.03(b) above 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 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 (contractually subordinated in right of payment to any other Indebtedness of the Borrower solely by virtue of being unsecured 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 Indebtednessby virtue of being secured on a junior Lien basis. For purposes of determining compliance with this Section 4.03 and with Section 4.129.01, (A) Indebtedness need not be Incurred solely by reference to in the event that an item of proposed Indebtedness, Disqualified Stock or preferred equity meets the criteria of more than one category of permitted the categories of Permitted Indebtedness described in clauses (i) through (xxiixv) 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 (or any portion thereof) meets the criteria of one or more of the categories of permitted Indebtedness described in clauses (i) through (xxii) of Section 4.03(b) above or is entitled to be Incurred incurred pursuant to Section 4.03(a)9.01(a) hereof, the Company shall, in its sole discretion, Borrower will be permitted to classify or reclassify (based on circumstances existing at the time of such reclassification) such item of Indebtedness (Indebtedness, Disqualified Stock or any portion thereof) in any manner that complies with this Section 4.03 preferred equity on the date of its incurrence and will only be required to include the amount and type of such item of Indebtedness Indebtedness, Disqualified Stock or preferred equity in one of the above clauses clauses, although the Borrower may divide and classify an item of Section 4.03(b) Indebtedness, Disqualified Stock or preferred equity in one or more of the types of Indebtedness, Disqualified Stock or preferred equity and may later reclassify all or a portion of such item of Indebtedness shall be treated as having been Incurred pursuant to only one Indebtedness, Disqualified Stock or preferred equity, in any manner that complies with this Section 9.01. The accrual of such clauses interest or pursuant to Section 4.03(a); provided, however, that all Indebtedness under the Credit Agreement outstanding on the Issue Date shall be deemed to have been Incurred pursuant to clause (i) 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 interestdividends, the accretion of accreted value, or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms or terms, the reclassification of preferred equity as Indebtedness due to a change in the form of common stock of the Companyaccounting principles, the payment of dividends on Preferred Disqualified Stock or preferred equity in the form of additional shares of Preferred Stock of the same classclass 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 9.01; provided, the accretion of liquidation preference and increases in each such case (other than preferred stock that 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 that the Borrower or any Restricted Subsidiary may incur pursuant to this Section 9.01 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies rates 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 4.03currency values. Guarantees of, or obligations in respect of letters of credit relating to, Indebtedness which is otherwise included in the determination of a particular The amount of any Indebtedness shall not be included in the determination outstanding as of such amount of Indebtedness; provided, however, that the Incurrence of the Indebtedness represented by such guarantee or letter of credit, as the case may any date will be, was in compliance with this Section 4.03.:
Appears in 1 contract
Samples: Credit Agreement (Forest Oil Corp)
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 4.03 and with Section 4.124.09, (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 Debt) or any portion thereof) Disqualified Stock meets the criteria of more than one or more of the categories of permitted Indebtedness Permitted Debt described in clauses (i1) through (xxii23) of this Section 4.03(b) 4.09(b), or is entitled to be Incurred incurred pursuant to Section 4.03(a)4.09(a) hereof, the Company shallIssuer 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 (based on circumstances existing at the time of such reclassification) such item of Indebtedness (or any portion thereof) Disqualified Stock in any manner that complies with this Section 4.03 and will only be required to include the amount and type of such item of Indebtedness 4.09 (including in one of the above clauses of Section 4.03(b) and such item of Indebtedness shall be treated as having been Incurred part pursuant to only one of such or more clauses or and/or in part pursuant to Section 4.03(a4.09(a) hereof); provided, however, that all in each case in accordance with the provisions set forth in Section 4.17. Any Indebtedness under the Bank Credit Agreement outstanding on the Issue Date shall be deemed to have been Incurred considered incurred under Section 4.09(b)(1) hereof and may not be later classified or reclassified pursuant to clause (iSection 4.09(a) 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 reclassifiedhereof. Accrual The accrual of interest, the accretion of accreted value, or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms or in the form of common stock of the Companyterms, and the payment of dividends on Preferred Disqualified Stock in the form of additional shares of Preferred Stock of the same class, the accretion class 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 Disqualified Stock will not be deemed to be an Incurrence 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 4.034.09. Guarantees ofFor purposes of determining any particular amount of Indebtedness, any Note Guarantees, Liens or obligations in with respect of to letters of credit relating tocredit, in each case, supporting Indebtedness which is otherwise included in the determination of a such particular amount, will not be included. In addition, notwithstanding any other provision of this Section 4.09, the maximum amount of Indebtedness shall that may be incurred pursuant to this covenant will not be included deemed to be exceeded, with respect to any outstanding Indebtedness, due solely to the result of fluctuations in the determination 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 amount of Indebtedness; provided, however, that the Incurrence of the Indebtedness represented by such guarantee or letter of credit, as the case may be, was in compliance with this Section 4.03refinancing.
Appears in 1 contract
Samples: Indenture (LSB Industries Inc)
