Limitation on Incurrence of Additional Indebtedness. The Company will not, and will not permit any of its Restricted Subsidiaries to, after the Issue Date, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an 50 acquisition), or otherwise become responsible for, contingently or otherwise (individually or collectively, to "Incur" or, as appropriate, an "Incurrence"), any Indebtedness. Neither the accrual of interest (including the issuance of "pay in kind" securities or similar instruments in respect of such accrued interest) pursuant to the terms of Indebtedness Incurred in compliance with this covenant, nor the accretion of original issue discount, nor the mere extension of the maturity of any Indebtedness shall be deemed to be an Incurrence of Indebtedness. Notwithstanding the foregoing, if there exists no Default or Event of Default immediately prior and subsequent thereto, the Company may incur Indebtedness if the Company's Annualized Operating Cash Flow Ratio, after giving effect to the Incurrence of such Indebtedness, would have been less than 8 to 1. In addition, if there exists no Default or Event of Default immediately prior and subsequent thereto, the foregoing limitations will not apply to the Incurrence of (i) Indebtedness by the Company or any of its Restricted Subsidiaries constituting Existing Indebtedness, reduced by repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and by repayments and permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereof, (ii) Indebtedness, in an aggregate principal amount not in excess of $525,000,000, permitted under the Credit Agreement, reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and (b) an amount equal to the aggregate amount of Indebtedness Incurred pursuant to clause (x), below, so long as such amounts Incurred pursuant to clause (x) remain outstanding; provided that, if there exists a Default or an Event of Default immediately prior or subsequent thereto, the Company and its Restricted Subsidiaries may Incur Indebtedness pursuant to this clause (ii) so long as the proceeds from such Incurrence are not used directly to pay any amounts owing in respect of any Indebtedness, including, without limitation, principal, interest and commitment fees, other than with respect to the Notes and the Holdings Securities, (iii) Indebtedness of the Company evidenced by the Securities, (iv)(A) Permitted Acquisition Indebtedness by the Company that satisfies the provisions of clause (x) of the definition thereof or (B) Permitted Acquisition Indebtedness by any Restricted Subsidiary that satisfies the provisions of clause (y) of the definition thereof, (v) Indebtedness between the Company and any Restricted Subsidiary of the Company or between Restricted Subsidiaries of the Company, provided that, in the case of Indebtedness of the Company, such obligations shall be unsecured and subordinated in all respects to the Holders' rights pursuant to the Securities, and the date of any event that causes a Restricted Subsidiary no longer to be a Restricted Subsidiary shall be an Incurrence Date with respect to such Indebtedness, (vi) Capitalized Lease Obligations and Purchase Money Indebtedness in an aggregate amount or aggregate principal amount, as the case may be, outstanding at any time not to exceed in the aggregate $15,000,000, provided that in the case of Purchase Money Indebt- edness, such Indebtedness shall not constitute less than 75% nor more than 100% of the cost (determined in accordance with GAAP) to the Company or such Restricted Subsidiary of the property purchased or leased with the proceeds thereof, (vii) Indebtedness of the Company or any Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company to the extent none of the foregoing results in the obligation to repay an obligation for money borrowed by any Person and are limited in aggregate amount to no greater than 10% of the fair market value of such business, assets or Restricted Subsidiary so disposed of, (viii) any guarantee by any Restricted Subsidiary of any Senior Indebtedness Incurred in compliance with this Section 4.12, (ix) Indebtedness of the Company or any Restricted Subsidiary under standby letters of credit or reimbursement obligations with respect thereto issued in the ordinary course of business and consistent with industry practices limited in aggregate amount to $5,000,000 at any one time outstanding, (x) Indebtedness of the Company (other than Indebtedness permitted by clauses (i) through (ix) or (xi) hereof) not to exceed $100,000,000 at any one time outstanding and (xi) Refinancing Indebted ness Incurred to extend, renew, replace or refund Indebtedness permitted under clauses (i) (as so reduced in amount), (ii) (as so reduced in amount), (iii), (iv) and (xi) of this paragraph. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (or that is a Non-Recourse Restricted Subsidiary designated to be a Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding at the time such Person becomes such a Restricted Subsidiary of the Company or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company shall be deemed to have been Incurred, as the case may be, at the time such Person becomes such a Restricted Subsidiary of the Company, or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company.
Appears in 1 contract
Limitation on Incurrence of Additional Indebtedness. The Company will not, and will not permit any of its Restricted Subsidiaries to, after the Issue Date, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an 50 acquisition), or otherwise become responsible for, contingently or otherwise (individually or collectively, to "Incur" or, as appropriate, an "Incurrence"), any Indebtedness. Neither the accrual of interest (including the issuance of "pay in kind" securities or similar instruments in respect of such accrued interest) pursuant to the terms of Indebtedness Incurred in compliance with this covenant, nor the accretion of original issue discount, nor the mere extension of the maturity of any Indebtedness shall be deemed to be an Incurrence of Indebtedness. Notwithstanding the foregoing, if there exists no Default or Event of Default immediately prior and subsequent thereto, the Company may incur Indebtedness if the Company's Annualized Operating Cash Flow Ratio, after giving effect to the Incurrence of such Indebtedness, would have been less than 8 to 1. In addition, if there exists no Default or Event of Default immediately prior and subsequent thereto, the foregoing limitations will not apply to the Incurrence of (i) Indebtedness by the Company or any of its Restricted Subsidiaries constituting Existing Indebtedness, reduced by repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and by repayments and permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereof, (ii) Indebtedness, in an aggregate principal amount not in excess of $525,000,000, permitted under the Credit Agreement, reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and (b) an amount equal to the aggregate amount of Indebtedness Incurred pursuant to clause (x), below, so long as such amounts Incurred pursuant to clause (x) remain outstanding; provided that, if there exists a Default or an Event of Default immediately prior or subsequent thereto, the Company and its Restricted Subsidiaries may Incur Indebtedness pursuant to this clause (ii) so long as the proceeds from such Incurrence are not used directly to pay any amounts owing in respect of any Indebtedness, including, without limitation, principal, interest and commitment fees, other than with respect to the Notes and the Holdings Securities, (iii) Indebtedness of the Company evidenced by the Securities, (iv)(A) Permitted Acquisition Indebtedness by the Company that satisfies the provisions of clause (x) of the definition thereof or (B) Permitted Acquisition Indebtedness by any Restricted Subsidiary that satisfies the provisions of clause (y) of the definition thereof, (v) Indebtedness between the Company and any Restricted Subsidiary of the Company or between Restricted Subsidiaries of the Company, provided that, in the case of Indebtedness of the Company, such obligations shall be unsecured and subordinated in all respects to the Holders' rights pursuant to the Securities, and the date of any event that causes
causes a Restricted Subsidiary no longer to be a Restricted Subsidiary shall be an Incurrence Date with respect to such Indebtedness, (vi) Capitalized Lease Obligations and Purchase Money Indebtedness in an aggregate amount or aggregate principal amount, as the case may be, outstanding at any time not to exceed in the aggregate $15,000,000, provided that in the case of Purchase Money Indebt- ednessIndebtedness, such Indebtedness shall not constitute less than 75% nor more than 100% of the cost (determined in accordance with GAAP) to the Company or such Restricted Subsidiary of the property purchased or leased with the proceeds thereof, (vii) Indebtedness of the Company or any Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company to the extent none of the foregoing results in the obligation to repay an obligation for money borrowed by any Person and are limited in aggregate amount to no greater than 10% of the fair market value of such business, assets or Restricted Subsidiary so disposed of, (viii) any guarantee by any Restricted Subsidiary of any Senior Indebtedness Incurred in compliance with this Section 4.12, (ix) Indebtedness of the Company or any Restricted Subsidiary under standby letters of credit or reimbursement obligations with respect thereto issued in the ordinary course of business and consistent with industry practices limited in aggregate amount to $5,000,000 at any one time outstanding, (x) Indebtedness of the Company (other than Indebtedness permitted by clauses (i) through (ix) or (xi) hereof) not to exceed $100,000,000 at any one time outstanding and (xi) Refinancing Indebted ness Indebtedness Incurred to extend, renew, replace or refund Indebtedness permitted under clauses (i) (as so reduced in amount), (ii) (as so reduced in amount), (iii), (iv) and (xi) of this paragraph. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (or that is a Non-Recourse Restricted Subsidiary designated to be a Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding at the time such Person becomes such a Restricted Subsidiary of the Company or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company shall be deemed to have been Incurred, as the case may be, at the time such Person becomes such a Restricted Subsidiary of the Company, or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company.
Appears in 1 contract
Limitation on Incurrence of Additional Indebtedness. The After the Issue Date, the Company will not, and will not permit any of its Restricted Subsidiaries to, after the Issue Date, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an 50 acquisition), or otherwise become responsible for, contingently or otherwise (individually or collectively, to "Incur" or, as appropriate, an "Incurrence"), any Indebtedness. Neither the accrual of interest (including the issuance of "pay in kind" securities or similar instruments in respect of such accrued interest) pursuant to the terms of Indebtedness Incurred in compliance with this covenant, nor the accretion of original issue discount, nor the mere extension of the maturity of any Indebtedness shall be deemed to be an Incurrence of Indebtedness. Notwithstanding the foregoing, if there exists no Default or Event of Default immediately prior and subsequent thereto, the Company may incur Incur Indebtedness if the Company's Annualized Operating Cash Flow Ratioif, after giving effect to the Incurrence of such Indebtedness, the Company's Annualized Operating Cash Flow Ratio would have been less than 8 8.0 to 1. In addition, if there exists no Default or Event of Default immediately prior and subsequent thereto, the foregoing limitations will not apply to the Incurrence of of:
(i) Indebtedness by the Company or any of its Restricted Subsidiaries constituting Existing Indebtedness, reduced by repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in under Section 4.15 and by repayments and permanent reductions in amounts outstanding pursuant to scheduled amortizations amortization and mandatory prepayments in accordance with the terms thereof, ;
(ii) Indebtedness, unsecured Indebtedness Incurred by the Company or any Guarantor in an aggregate principal amount outstanding at any time not in excess of to exceed $525,000,000, permitted under the Credit Agreement, 100,000,000 reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and (b) an amount equal to the aggregate amount of Indebtedness amounts Incurred pursuant to clause (x), ) below, so long as such amounts Incurred pursuant to clause (x) remain outstanding; provided that, if there exists a Default or an Event of Default immediately prior or subsequent thereto, the Company and its Restricted Subsidiaries may Incur Indebtedness pursuant to this clause (ii) so long as the proceeds from such Incurrence are not used directly to pay any amounts owing in respect of any Indebtedness, including, without limitation, principal, interest and commitment fees, other than with respect to the Notes and the Holdings Securities, ;
(iii) Indebtedness of Incurred by the Company evidenced by the Securities, Initial Securities and the Exchange Securities therefor and the guarantees thereof by Restricted Subsidiaries;
(iv)(Aa) Permitted Acquisition Indebtedness by the Company that satisfies the provisions of clause (x) of the definition thereof or (Bb) Permitted Acquisition Indebtedness In- debtedness by any Restricted Subsidiary that satisfies the provisions of clause (y) of the definition thereof, ;
(v) Indebtedness between the Company and any Restricted Subsidiary of the Company or between Restricted Subsidiaries of the Company; provided, provided however, that, in the case of Indebtedness of the Company, such obligations shall be unsecured and subordinated in all respects to the Holders' rights pursuant to the Securities, and the date of any event that causes
causes a Restricted Subsidiary no longer to be a Restricted Subsidiary shall be an Incurrence Date with respect to such Indebtedness, ;
(vi) Capitalized Lease Obligations and Purchase Money Indebtedness in an aggregate amount or aggregate principal amount, as the case may be, outstanding at any time not to exceed in the aggregate $15,000,000; provided, provided however, that in the case of Purchase Money Indebt- ednessIndebtedness, such Indebtedness shall not constitute less than 75% nor more than 100% of the cost (determined in accordance with GAAP) to the Company or such Restricted Subsidiary of the property purchased or leased with the proceeds thereof, ;
(vii) Indebtedness of the Company or any Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company to the extent none of the foregoing results in the obligation to repay an obligation for money borrowed by any Person and are limited in aggregate amount to no greater than 10% of the fair market value of such business, assets or Restricted Subsidiary so disposed of, ;
(viii) any guarantee by any Restricted Subsidiary of any Senior Indebtedness Incurred in compliance with this Section 4.12, 4.20;
(ix) Indebtedness of the Company or any Restricted Subsidiary under standby letters of credit or reimbursement obligations with respect thereto issued in the ordinary course of business and consistent with industry practices limited in aggregate amount to $5,000,000 at any one time outstanding, ; and
(x) Refinancing Indebtedness of the Company (other than Indebtedness permitted by clauses (i) through (ix) or (xi) hereof) not to exceed $100,000,000 at any one time outstanding and (xi) Refinancing Indebted ness Incurred to extend, renew, replace or refund Indebtedness permitted under clauses (i) (as so reduced in amount), (ii) (as so reduced in amount), (iii), (iv) and (xix) of this paragraph. For purposes of determining compliance with this Section 4.12, in the event that an item of Indebtedness meets the criteria of more than one of the categories described above or is entitled to be incurred pursuant to the second paragraph of this Section 4.12, the Company shall, in its sole discretion, classify such item of Indebtedness in any manner that complies with this Section 4.12 and such item of Indebtedness will be treated as having been incurred pursuant to only one of such clauses or pursuant to the second paragraph of this Section 4.12. In addition, the Company may, at any time, change the classification of an item of Indebtedness (or any portion thereof) to any other clause or to the second paragraph of this Section, provided that the Company would be permitted to incur such item of Indebtedness (or such portion thereof) pursuant to such other clause or the second paragraph of this Section, as the case may be, at such time of reclassification. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (or that is a Non-Recourse Restricted Subsidiary designated to be a Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding at the time such Person becomes such a Restricted Subsidiary of the Company or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company shall be deemed to have been Incurred, as the case may be, at the time such Person becomes such a Restricted Subsidiary of the Company, or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company.
Appears in 1 contract
Limitation on Incurrence of Additional Indebtedness. The After the Issue Date, the Company will not, and will not permit any of its Restricted Subsidiaries to, after the Issue Date, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an 50 acquisition), or otherwise become responsible for, contingently or otherwise (individually or collectively, to "IncurINCUR" or, as appropriate, an "IncurrenceINCURRENCE"), any Indebtedness. Neither the accrual of interest (including the issuance of "pay in kind" securities or similar instruments in respect of such accrued interest) pursuant to the terms of Indebtedness Incurred in compliance with this covenant, nor the accretion of original issue discount, nor the mere extension of the maturity of any Indebtedness shall be deemed to be an Incurrence of Indebtedness. Notwithstanding the foregoing, if there exists no Default or Event of Default immediately prior and subsequent thereto, the Company may incur Incur Indebtedness if the Company's Annualized Operating Cash Flow Ratioif, after giving effect to the Incurrence of such Indebtedness, the Company's Annualized Operating Cash Flow Ratio would have been less than 8 8.0 to 1. In addition, if there exists no Default or Event of Default immediately prior and subsequent thereto, the foregoing limitations will not apply to the Incurrence of of:
(i) Indebtedness by the Company or any of its Restricted Subsidiaries constituting Existing Indebtedness, reduced by repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in under Section 4.15 and by repayments and permanent reductions in amounts outstanding pursuant to scheduled amortizations amortization and mandatory prepayments in accordance with the terms thereof, ;
(ii) Indebtedness, unsecured Indebtedness Incurred by the Company or any Guarantor in an aggregate principal amount outstanding at any time not in excess of to exceed $525,000,000, permitted under the Credit Agreement, 100,000,000 reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and (b) an amount equal to the aggregate amount of Indebtedness amounts Incurred pursuant to clause (x), ) below, so long as such amounts Incurred pursuant to clause (x) remain outstanding; provided that, if there exists a Default or an Event of Default immediately prior or subsequent thereto, the Company and its Restricted Subsidiaries may Incur Indebtedness pursuant to this clause (ii) so long as the proceeds from such Incurrence are not used directly to pay any amounts owing in respect of any Indebtedness, including, without limitation, principal, interest and commitment fees, other than with respect to the Notes and the Holdings Securities, ;
(iii) Indebtedness of Incurred by the Company evidenced by the Securities, Initial Securities and the Exchange Securities therefor and the guarantees thereof by Restricted Subsidiaries;
(iv)(Aa) Permitted Acquisition Indebtedness by the Company that satisfies the provisions of clause (x) of the definition thereof or (Bb) Permitted Acquisition Indebtedness by any Restricted Subsidiary that satisfies the provisions of clause (y) of the definition thereof, ;
(v) Indebtedness between the Company and any Restricted Subsidiary of the Company or between Restricted Subsidiaries of the Company; PROVIDED, provided HOWEVER, that, in the case of Indebtedness of the Company, such obligations shall be unsecured and subordinated in all respects to the Holders' rights pursuant to the Securities, and the date of any event that causes
causes a Restricted Subsidiary no longer to be a Restricted Subsidiary shall be an Incurrence Date with respect to such Indebtedness, ;
(vi) Capitalized Lease Obligations and Purchase Money Indebtedness in an aggregate amount or aggregate principal amount, as the case may be, outstanding at any time not to exceed in the aggregate $15,000,000; PROVIDED, provided HOWEVER, that in the case of Purchase Money Indebt- ednessIndebtedness, such Indebtedness shall not constitute less than 75% nor more than 100% of the cost (determined in accordance with GAAP) to the Company or such Restricted Subsidiary of the property purchased or leased with the proceeds thereof, ;
(vii) Indebtedness of the Company or any Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company to the extent none of the foregoing results in the obligation to repay an obligation for money borrowed by any Person and are limited in aggregate amount to no greater than 10% of the fair market value of such business, assets or Restricted Subsidiary so disposed of, ;
(viii) any guarantee by any Restricted Subsidiary of any Senior Indebtedness Incurred in compliance with this Section 4.12, 4.20;
(ix) Indebtedness of the Company or any Restricted Subsidiary under standby letters of credit or reimbursement obligations with respect thereto issued in the ordinary course of business and consistent with industry practices limited in aggregate amount to $5,000,000 at any one time outstanding, ; and
(x) Refinancing Indebtedness of the Company (other than Indebtedness permitted by clauses (i) through (ix) or (xi) hereof) not to exceed $100,000,000 at any one time outstanding and (xi) Refinancing Indebted ness Incurred to extend, renew, replace or refund Indebtedness permitted under clauses (i) (as so reduced in amount), (ii) (as so reduced in amount), (iii), (iv) and (xix) of this paragraph. For purposes of determining compliance with this Section 4.12, in the event that an item of Indebtedness meets the criteria of more than one of the categories described above or is entitled to be incurred pursuant to the second paragraph of this Section 4.12, the Company shall, in its sole discretion, classify such item of Indebtedness in any manner that complies with this Section 4.12 and such item of Indebtedness will be treated as having been incurred pursuant to only one of such clauses or pursuant to the second paragraph of this Section 4.12. In addition, the Company may, at any time, change the classification of an item of Indebtedness (or any portion thereof) to any other clause or to the second paragraph of this Section, provided that the Company would be permitted to incur such item of Indebtedness (or such portion thereof) pursuant to such other clause or the second paragraph of this Section, as the case may be, at such time of reclassification. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (or that is a Non-Recourse Restricted Subsidiary designated to be a Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding at the time such Person becomes such a Restricted Subsidiary of the Company or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company shall be deemed to have been Incurred, as the case may be, at the time such Person becomes such a Restricted Subsidiary of the Company, or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company.
Appears in 1 contract
Limitation on Incurrence of Additional Indebtedness. The Company will not, and will not permit any of its Restricted Subsidiaries to, after the Issue Date, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an 50 acquisition), or otherwise become responsible for, contingently or otherwise (individually or collectively, to "Incur" or, as appropriate, an "Incurrence"), any Indebtedness. Neither the accrual of interest (including the issuance of "pay in kind" securities or similar instruments in respect of such accrued interest) pursuant to the terms of Indebtedness Incurred in compliance with this covenant, nor the accretion of original issue discount, nor the mere extension of the maturity of any Indebtedness shall be deemed to be an Incurrence of Indebtedness. Notwithstanding the foregoing, if there exists no Default or Event of Default immediately prior and subsequent thereto, the Company may incur Incur Indebtedness and any Restricted Subsidiary may Incur Acquired Indebtedness if the Company's Annualized Operating Cash Flow Ratio, after giving effect to the Incurrence of such Indebtedness, would have been less than 8 8.5 to 11.0 at any time prior to December 31, 2000 and 8.0 to 1.0 thereafter, and the application of the proceeds therefrom. In addition, if the foregoing limitations will not apply to the Incurrence of the following; provided that, except in the case of clauses (i), (vii), (viii) and (xi) below, there exists no Default or Event of Default immediately prior and subsequent thereto, the foregoing limitations will not apply to the Incurrence of :
(i) Indebtedness by of the Company or any of its Restricted Subsidiaries constituting Existing Indebtednessunder a Credit Facility in an aggregate principal amount at any one time outstanding not to exceed $1.0 billion, reduced by repayments of and (a) permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and by repayments and 4.14, (b) permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereofthereof (to the extent actually made), (iic) Indebtedness, in an aggregate the principal amount not in excess of $525,000,000, permitted under the Credit Agreement, reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 Old Notes that at the relevant date of determination is outstanding after consummation of the Merger and the transactions consummated substantially contemporaneously therewith (other than Old Notes which have been properly defeased) and (bd) an amount equal to the aggregate amount of any Indebtedness Incurred outstanding pursuant to clause (xxiv), below, so long as such amounts Incurred pursuant to clause (x) remain outstanding; provided that, if there exists a Default or an Event of Default immediately prior or subsequent thereto, the Company and its Restricted Subsidiaries may Incur Indebtedness pursuant to this clause ;
(ii) so long as Indebtedness of a Restricted Subsidiary under one or more bank credit facilities provided such Indebtedness could be incurred by the proceeds from such Incurrence are not used directly to pay any amounts owing Issuer under the Annualized Operating Cash Flow Ratio provision set forth in respect the second paragraph of any Indebtedness, including, without limitation, principal, interest and commitment fees, other than with respect to the Notes and the Holdings Securities, this covenant;
(iii) Indebtedness of the Company evidenced by the Securities, (iv)(A) Permitted Acquisition Indebtedness by the Company that satisfies the provisions of clause (x) of the definition thereof or (B) Permitted Acquisition Indebtedness by any Restricted Subsidiary that satisfies the provisions of clause (y) of the definition thereof, (v) Indebtedness between the Company and any Restricted Subsidiary of the Company or between Restricted Subsidiaries of the Company, provided that, in the case of Indebtedness of the Company, such obligations shall be unsecured and subordinated in all respects to the Holders' rights pursuant to the Securities, and the date of any event that causes
a Restricted Subsidiary no longer to be a Restricted Subsidiary shall be an Incurrence Date with respect to such Indebtedness, (vi) Capitalized Lease Obligations and Purchase Money Indebtedness in an aggregate amount or aggregate principal amount, as the case may be, outstanding at any time not to exceed in the aggregate $15,000,000, provided that in the case of Purchase Money Indebt- edness, such Indebtedness shall not constitute less than 75% nor more than 100% of the cost (determined in accordance with GAAP) to the Company or such Restricted Subsidiary of the property purchased or leased with the proceeds thereof, (vii) Indebtedness of the Company or any Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company to the extent none of the foregoing results in the obligation to repay an obligation for money borrowed by any Person and are limited in aggregate amount to no greater than 10% of the fair market value of such business, assets or Restricted Subsidiary so disposed of, (viii) any guarantee by any Restricted Subsidiary of any Senior Indebtedness Incurred in compliance with this Section 4.12, (ix) Indebtedness of the Company or any Restricted Subsidiary under standby letters of credit or reimbursement obligations with respect thereto issued in the ordinary course of business and consistent with industry practices limited in aggregate amount to $5,000,000 at any one time outstanding, (x) Indebtedness of the Company (other than Indebtedness permitted by clauses (i) through (ix) or (xi) hereof) not to exceed $100,000,000 at any one time outstanding and (xi) Refinancing Indebted ness Incurred to extend, renew, replace or refund Indebtedness permitted under clauses (i) (as so reduced in amount), (ii) (as so reduced in amount), (iii), (iv) and (xi) of this paragraph. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (or that is a Non-Recourse Restricted Subsidiary designated to be a Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding at the time such Person becomes such a Restricted Subsidiary of the Company or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company shall be deemed to have been Incurred, as the case may be, at the time such Person becomes such a Restricted Subsidiary of the Company, or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company.;
Appears in 1 contract
Limitation on Incurrence of Additional Indebtedness. The Company will not, and will not permit any of its Restricted Subsidiaries to, after the Issue Date, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an 50 acquisition), or otherwise become responsible for, contingently or otherwise (individually or collectively, to "Incur" or, as appropriate, an "Incurrence"), any Indebtedness. Neither the accrual of interest (including the issuance of "pay in kind" securities or similar instruments in respect of such accrued interest) pursuant to the terms of Indebtedness Incurred in compliance with this covenant, nor the accretion of original issue discount, nor the mere extension of the maturity of any Indebtedness shall be deemed to be an Incurrence of Indebtedness. Notwithstanding the foregoing, if there exists no Default or Event of Default immediately prior and subsequent thereto, the Company may incur Indebtedness if the Company's Annualized Operating Cash Flow Ratio, after giving effect to the Incurrence of such Indebtedness, would have been less than 8 to 1. In addition, if there exists no Default or Event of Default immediately prior and subsequent thereto, the foregoing limitations will not apply to the Incurrence of (i) Indebtedness by the Company or any of its Restricted Subsidiaries constituting Existing Indebtedness, reduced by repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 4.14 and by repayments and permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereof, (ii) Indebtedness, in an aggregate principal amount not in excess of $525,000,000, permitted under the Credit Agreement, reduced Indebtedness by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and (b) an amount equal to the aggregate amount of Indebtedness Incurred pursuant to clause (x), below, so long as such amounts Incurred pursuant to clause (x) remain outstanding; provided that, if there exists a Default or an Event of Default immediately prior or subsequent thereto, the Company and its Restricted Subsidiaries may Incur Indebtedness pursuant to this clause (ii) so long as the proceeds from such Incurrence are not used directly to pay any amounts owing in respect of any Indebtedness, including, without limitation, principal, interest and commitment fees, other than with respect to the Notes and the Holdings Securities, (iii) Indebtedness of the Company evidenced by the Securities, (iv)(Aiii)(A) Permitted Acquisition Indebtedness by the Company that satisfies the provisions of clause (x) of the definition thereof or (B) Permitted Acquisition Indebtedness by any Restricted Subsidiary that satisfies the provisions of clause (y) of the definition thereof, (viv) Indebtedness between the Company and any Restricted Subsidiary of the Company or between Restricted Subsidiaries of the Company, provided that, in the case of Indebtedness of the Company, such obligations shall be unsecured and subordinated in all respects to the Holders' rights pursuant to the Securities, and the date of any event that causes
a Restricted Subsidiary no longer to be a Restricted Subsidiary shall be an Incurrence Date with respect to such Indebtedness, (viv) Capitalized Lease Obligations and Purchase Money Indebtedness in an aggregate amount or aggregate principal amount, as the case may be, outstanding at any time not to exceed in the aggregate $15,000,00010,000,000, provided that in the case of Purchase Money Indebt- ednessIndebtedness, such Indebtedness shall not constitute less than 75% nor more than 100% of the cost (determined in accordance with GAAP) to the Company or such Restricted Subsidiary of the property purchased or leased with the proceeds thereof, (viivi) Indebtedness of the Company or any Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company to the extent none of the foregoing results in the obligation to repay an obligation for money borrowed by any Person and are limited in aggregate amount to no greater than 10% of the fair market value of such business, assets or Restricted Subsidiary so disposed of, (viiivii) any guarantee by any Restricted Subsidiary of any (A) Senior Indebtedness Incurred in compliance with this Section 4.12covenant or (B) Indebtedness Incurred pursuant to clause (ix) of this paragraph, (ixviii) Indebtedness of the Company or any Restricted Subsidiary under standby letters of credit or reimbursement obligations with respect thereto issued in the ordinary course of business and consistent with industry practices limited in aggregate amount to $5,000,000 2,000,000 at any one time outstanding, (xix) Indebtedness of the Company (other than Indebtedness permitted by clauses (i) through (ixviii) or (xix) hereof) not to exceed $100,000,000 50,000,000 at any one time outstanding and (xix) Refinancing Indebted ness Indebtedness Incurred to extend, renew, replace or refund Indebtedness permitted under clauses (i) (as so reduced in amount), (ii) (as so reduced in amount), (iii), (iv) and (xix) of this paragraph. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (or that is a Non-Recourse Restricted Subsidiary designated to be a Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding at the time such Person becomes such a Restricted Subsidiary of the Company or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company shall be deemed to have been Incurred, as the case may be, at the time such Person becomes such a Restricted Subsidiary of the Company, or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company.
Appears in 1 contract
Limitation on Incurrence of Additional Indebtedness. The Company will not, and will not permit any of its Restricted Subsidiaries to, after the Issue Date, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an 50 acquisition), or otherwise become responsible for, contingently or otherwise (individually or collectively, to "Incur" or, as appropriate, an "Incurrence"), any Indebtedness. Neither the accrual of interest (including the issuance of "pay in kind" securities or similar instruments in respect of such accrued interest) pursuant to the terms of Indebtedness Incurred in compliance with this covenant, nor the accretion of original issue discount, nor the mere extension of the maturity of any Indebtedness shall be deemed to be an Incurrence of Indebtedness. Notwithstanding the foregoing, if there exists no Default or Event of Default immediately prior and subsequent thereto, the Company may incur Indebtedness if the Company's Annualized Operating Cash Flow Ratio, after giving effect to the Incurrence of such Indebtedness, would have been less than 8 to 1. In addition, if there exists no Default or Event of Default immediately prior and subsequent thereto, the foregoing limitations will not apply to the Incurrence of (i) Indebtedness by the Company or any of its Restricted Subsidiaries constituting Existing Indebtedness, reduced by repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and by repayments and permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereof, (ii) Indebtedness, in an aggregate principal amount not in excess of $525,000,000, permitted under the Credit Agreement, reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and (b) an amount equal to the aggregate amount of Indebtedness Incurred pursuant to clause (x), below, so long as such amounts Incurred pursuant to clause (x) remain outstanding; provided that, if there exists a Default or an Event of Default immediately prior or subsequent thereto, the Company and its Restricted Subsidiaries may Incur Indebtedness pursuant to this clause (ii) so long as the proceeds from such Incurrence are not used directly to pay any amounts owing in respect of any Indebtedness, including, without limitation, principal, interest and commitment fees, other than with respect to the Notes and the Holdings Securities, (iii) Indebtedness of the Company evidenced by the Securities, (iv)(A) Permitted Acquisition Indebtedness by the Company that satisfies the provisions of clause (x) of the definition thereof or (B) Permitted Acquisition Indebtedness by any Restricted Subsidiary that satisfies the provisions of clause (y) of the definition thereof, (v) Indebtedness between the Company and any Restricted Subsidiary of the Company or between Restricted Subsidiaries of the Company, provided that, in the case of Indebtedness of the Company, such obligations shall be unsecured and subordinated in all respects to the Holders' rights pursuant to the Securities, and the date of any event that causes
causes a Restricted Subsidiary no longer to be a Restricted Subsidiary shall be an Incurrence Date with respect to such Indebtedness, (vi) Capitalized Lease Obligations and Purchase Money Indebtedness in an aggregate amount or aggregate principal amount, as the case may be, outstanding at any time not to exceed in the aggregate $15,000,000, provided that in the case of Purchase Money Indebt- Indebt edness, such Indebtedness shall not constitute less than 75% nor more than 100% of the cost (determined in accordance with GAAP) to the Company or such Restricted Subsidiary of the property purchased or leased with the proceeds thereof, (vii) Indebtedness of the Company or any Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company to the extent none of the foregoing results in the obligation to repay an obligation for money borrowed by any Person and are limited in aggregate amount to no greater than 10% of the fair market value of such business, assets or Restricted Subsidiary so disposed of, (viii) any guarantee by any Restricted Subsidiary of any Senior Indebtedness Incurred in compliance with this Section 4.12, (ix) Indebtedness of the Company or any Restricted Subsidiary under standby letters of credit or reimbursement ▇▇▇▇ bursement obligations with respect thereto issued in the ordinary course of business busi ness and consistent with industry practices limited in aggregate amount to $5,000,000 at any one time outstanding, (x) Indebtedness of the Company (other than Indebtedness permitted by clauses (i) through (ix) or (xi) hereof) not to exceed $100,000,000 at any one time outstanding and (xi) Refinancing Indebted ness Incurred to extend, renew, replace or refund Indebtedness permitted under clauses (i) (as so reduced in amount), (ii) (as so reduced in amount), (iii), (iv) and (xi) of this paragraph. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (or that is a Non-Recourse Restricted Subsidiary designated to be a Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding at the time such Person becomes such a Restricted Subsidiary of the Company or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company shall be deemed to have been Incurred, as the case may be, at the time such Person becomes such a Restricted Subsidiary of the Company, or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company.
Appears in 1 contract
Limitation on Incurrence of Additional Indebtedness. (a) The Company will notnot Incur any Indebtedness, provided, however, the Company may Incur Indebtedness, if, at the time of and immediately after giving pro forma effect to the Incurrence thereof and the application of the proceeds therefrom, the ratio of (i) the amount of the Company’s unconsolidated short-term Indebtedness (current liabilities) to (ii) its total assets, as specified in the Company’s most recently available Basic Quarterly Financial Statements or Basic Annual Financial Statements, as applicable, prior to the date of such Incurrence is lower than 0.35. For the avoidance of doubt, the Trustee shall not be required to determine the ratio described in this Section 3.16(a).
(b) For purposes of determining compliance with, and will not permit any of its Restricted Subsidiaries to, after the Issue Date, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an 50 acquisition), or otherwise become responsible for, contingently or otherwise (individually or collectively, to "Incur" or, as appropriate, an "Incurrence")outstanding principal amount of, any Indebtedness. Neither the accrual of interest (including the issuance of "pay in kind" securities or similar instruments in respect of such accrued interest) particular Indebtedness Incurred pursuant to the terms of Indebtedness Incurred and in compliance with this covenant, nor the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with Argentine GAAP. Accrual of interest, the accretion or amortization of original issue discount, nor the mere extension payment of regularly scheduled interest in the form of additional Indebtedness of the maturity of any Indebtedness shall same instrument with the same terms will not be deemed to be an Incurrence of Indebtedness. Notwithstanding the foregoingIndebtedness for purposes of this Section 3.16; provided, if there exists no Default or Event of Default immediately prior and subsequent thereto, the Company may incur Indebtedness if the Company's Annualized Operating Cash Flow Ratio, after giving effect to the Incurrence of that any such Indebtedness, would have been less than 8 to 1. In addition, if there exists no Default or Event of Default immediately prior and subsequent thereto, the foregoing limitations will not apply to the Incurrence of (i) Indebtedness by the Company or any of its Restricted Subsidiaries constituting Existing Indebtedness, reduced by repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and by repayments and permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereof, (ii) Indebtedness, in an aggregate principal amount not in excess of $525,000,000, permitted under the Credit Agreement, reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and (b) an amount equal to the aggregate amount of additional Indebtedness Incurred pursuant to clause (x), below, so long this Section 3.16 will be counted as such amounts Incurred pursuant to clause (x) remain outstanding; provided that, if there exists a Default or an Event Indebtedness outstanding thereunder for purposes of Default immediately prior or subsequent theretoany future Incurrence under this Section 3.16. Notwithstanding any other provision of this Section 3.16, the maximum amount of Indebtedness that the Company and its Restricted Subsidiaries may Incur Indebtedness pursuant to this clause (ii) so long as the proceeds from such Incurrence are not used directly to pay any amounts owing in respect of any IndebtednessSection 3.16, including, without limitation, principal, interest and commitment fees, other than with respect to the Notes and the Holdings Securities, (iii) Indebtedness of the Company evidenced by the Securities, (iv)(A) Permitted Acquisition Indebtedness by the Company that satisfies the provisions of clause (x) of the definition thereof or (B) Permitted Acquisition Indebtedness by any Restricted Subsidiary that satisfies the provisions of clause (y) of the definition thereof, (v) Indebtedness between the Company and any Restricted Subsidiary of the Company or between Restricted Subsidiaries of the Company, provided that, in the case of Indebtedness of the Company, such obligations shall be unsecured and subordinated in all respects to the Holders' rights pursuant to the Securities, and the date of any event that causes
a Restricted Subsidiary no longer to be a Restricted Subsidiary shall be an Incurrence Date with respect to such Indebtedness, (vi) Capitalized Lease Obligations and Purchase Money Indebtedness in an aggregate amount or aggregate principal amount, as the case may be, outstanding at any time not to exceed in the aggregate $15,000,000, provided that in the case of Purchase Money Indebt- edness, such Indebtedness shall not constitute less than 75% nor more than 100% of the cost (determined in accordance with GAAP) to the Company or such Restricted Subsidiary of the property purchased or leased with the proceeds thereof, (vii) Indebtedness of the Company or any Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company to the extent none of the foregoing results in the obligation to repay an obligation for money borrowed by any Person and are limited in aggregate amount to no greater than 10% of the fair market value of such business, assets or Restricted Subsidiary so disposed of, (viii) any guarantee by any Restricted Subsidiary of any Senior Indebtedness Incurred in compliance with this Section 4.12, (ix) Indebtedness of the Company or any Restricted Subsidiary under standby letters of credit or reimbursement obligations with respect thereto issued in the ordinary course of business and consistent with industry practices limited in aggregate amount to $5,000,000 at any one time outstanding, (x) Indebtedness of the Company (other than Indebtedness permitted by clauses (i) through (ix) or (xi) hereof) not to exceed $100,000,000 at any one time outstanding and (xi) Refinancing Indebted ness Incurred to extend, renew, replace or refund Indebtedness permitted under clauses (i) (as so reduced in amount), (ii) (as so reduced in amount), (iii), (iv) and (xi) of this paragraph. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (or that is a Non-Recourse Restricted Subsidiary designated to be a Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding at the time such Person becomes such a Restricted Subsidiary of the Company or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company shall be deemed to have been Incurred, be exceeded as the case may be, at the time such Person becomes such a Restricted Subsidiary result solely of the Company, fluctuations in exchange rates or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Companycurrency values.
Appears in 1 contract
Sources: Indenture (Cresud Inc)
Limitation on Incurrence of Additional Indebtedness. The Company will not, and will not permit any of its Restricted Subsidiaries to, after the Issue Date, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an 50 acquisition), or otherwise become responsible for, contingently or otherwise (individually or collectively, to "Incur" or, as appropriate, an "Incurrence"), any Indebtedness. Neither the accrual of interest (including the issuance of "pay in kind" securities or similar instruments in respect of such accrued interest) pursuant to the terms of Indebtedness Incurred in compliance with this covenant, nor the accretion of original issue discount, nor the mere extension of the maturity of any Indebtedness shall be deemed to be an Incurrence of Indebtedness. Notwithstanding the foregoing, if there exists no Default or Event of Default immediately prior and subsequent thereto, the Company may incur Incur Indebtedness and any Restricted Subsidiary may Incur Acquired Indebtedness if the Company's Annualized Operating Cash Flow Ratio, after giving effect to the Incurrence of such Indebtedness, would have been less than 8 8.5 to 11.0 at any time prior to December 31, 2000 and 8.0 to 1.0 thereafter, and the application of the proceeds therefrom. In addition, if the foregoing limitations will not apply to the Incurrence of the following; provided that, except in the case of clauses (i), (vii), (viii) and (xi) below, there exists no Default or Event of Default immediately prior and subsequent thereto, the foregoing limitations will not apply to the Incurrence of :
(i) Indebtedness by of the Company or any of its Restricted Subsidiaries constituting Existing Indebtednessunder a Credit Facility in an aggregate principal amount at any one time outstanding not to exceed $1.0 billion, reduced by repayments of and (a) permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and by repayments and 4.14, (b) permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereofthereof (to the extent actually made), (iic) Indebtedness, in an aggregate the principal amount not in excess of $525,000,000, permitted under the Credit Agreement, reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 Old Notes that at the relevant date of determination is outstanding after consummation of the Merger and the transactions consummated substantially contemporaneously therewith (other than Old Notes which have been properly defeased) and (bd) an amount equal to the aggregate amount of any Indebtedness Incurred outstanding pursuant to clause (xxiv), below, so long as such amounts Incurred pursuant to clause (x) remain outstanding; provided that, if there exists a Default or an Event of Default immediately prior or subsequent thereto, the Company and its Restricted Subsidiaries may Incur Indebtedness pursuant to this clause ;
(ii) so long as Indebtedness of a Restricted Subsidiary under one or more bank credit facilities provided such Indebtedness could be incurred by the proceeds from such Incurrence are not used directly to pay any amounts owing Issuer under the Annualized Operating Cash Flow Ratio provision set forth in respect the second paragraph of any Indebtedness, including, without limitation, principal, interest and commitment fees, other than with respect to the Notes and the Holdings Securities, this covenant;
(iii) Indebtedness of the Company evidenced by the Securities, ;
(iv)(Aiv) Permitted Acquisition Indebtedness represented by the Company Old Notes or the Convertible Notes that satisfies the provisions of clause (x) remain outstanding after consummation of the definition thereof or (B) Permitted Acquisition Indebtedness by any Restricted Subsidiary that satisfies Merger and the provisions of clause (y) of the definition thereof, transactions consummated substantially contemporaneously therewith;
(v) Indebtedness between the Company and any Restricted Subsidiary of the Company or between Restricted Subsidiaries of the Company, provided that, in the case of Indebtedness of the Company, such obligations shall be unsecured and subordinated in all respects to the Holders' rights pursuant to the Securities, Securities and the date of any event that causesCompany's guarantee under the Credit Facility;
a Restricted Subsidiary no longer to be a Restricted Subsidiary shall be an Incurrence Date with respect to such Indebtedness, (vi) Capitalized Lease Obligations and Purchase Money Indebtedness in an aggregate amount or aggregate principal amount, as the case may be, outstanding at any time not to exceed in the aggregate $15,000,00020,000,000, provided that in the case of Purchase Money Indebt- ednessIndebtedness, such Indebtedness shall not constitute less than 75% nor more than 100% of the cost (determined in accordance with GAAP) to the Company or such Restricted Subsidiary of the property purchased or leased with the proceeds thereof, ;
(vii) Indebtedness of the Company or any Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company to the extent none of the foregoing results in the obligation to repay an obligation for money borrowed by any Person and are limited in aggregate amount to no greater than 10% of the fair market value of such business, assets or Restricted Subsidiary so disposed of, ;
(viii) any guarantee by any Restricted Subsidiary made in accordance with the provisions of any Senior Section 4.20;
(ix) Indebtedness Incurred by the Company or any of its Restricted Subsidiaries in compliance connection with the acquisition of a new Restricted Subsidiary, the majority of whose revenues for the most recent twelve months for which audited or unaudited financial statements are available are from a Related Business, or of property, business or assets which, or Capital Stock of a Person all or substantially all of whose assets, are a type generally used in a Related Business; provided that such Indebtedness was Incurred by the prior owner of such Restricted Subsidiary, property, business, assets or Capital Stock prior to such contemplation of, such acquisition by the Company or one of its Restricted Subsidiaries and was not Incurred in connection with, or in contemplation of, such acquisition by the Company or one of its Restricted Subsidiaries; and provided, further, that the principal amount (or accreted value, as applicable) of such Indebtedness, together with any other outstanding Indebtedness Incurred pursuant to this Section 4.12, clause (ix), does not exceed $25.0 million at any one time outstanding;
(x) Indebtedness of the Company or any Restricted Subsidiary under standby letters of credit or reimbursement obligations with respect thereto issued in the ordinary course of business and consistent with industry practices limited in aggregate amount to $5,000,000 5.0 million at any one time outstanding;
(xi) Interest Rate Protection Obligations relating to (A) Indebtedness of the Company or any Restricted Subsidiary (which Indebtedness is otherwise permitted to be Incurred under this covenant) or (B) Indebtedness for which a lender has provided a commitment in an amount reasonably anticipated to be Incurred by the Company or any Restricted Subsidiary in the 12 months after such Interest Rate Protection Obligations has been Incurred; provided, however, that the notional principal amount of such Interest Rate Protection Obligation does not exceed the principal amount of the Indebtedness (xincluding Indebtedness subject to commitments) to which such Interest Rate Protection Obligations relate;
(xii) Indebtedness of the Company (other than Indebtedness permitted by clauses (i) through (ixxi) or (xixiv) hereof) not to exceed $100,000,000 75.0 million at any one time outstanding and outstanding;
(xixiii) Refinancing Indebted ness Indebtedness Incurred to extend, renew, replace or refund Indebtedness permitted under clauses (iiii) (as so reduced in amount), (ii) (as so reduced in amount), (iii), or (iv) of this paragraph (plus any reasonably determined prepayment premium necessary to accomplish such refinancing and such reasonable fees and expenses incurred in connection therewith); and
(xixiv) Refinancing Indebtedness Incurred by the Company to extend, renew, replace or refund Indebtedness permitted under clause (i) of this paragraphparagraph (plus any reasonably determined prepayment premium necessary to accomplish such refinancing and such reasonable fees and expenses incurred in connection therewith). Indebtedness For purposes of any Person that is not a Restricted Subsidiary clause (i)(c) above, the transactions consummated substantially contemporaneously with the Merger may include, without limitation, the repayment of Old Notes outstanding Merger Date within one Business Day of the Company Merger Date if the Company, upon consummation of the Merger, shall have, pursuant to such instruments acceptable to the agent lender under the Credit Facility, (or that is a Non-Recourse Restricted Subsidiary designated i) caused to be a Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding at the time such Person becomes such a Restricted Subsidiary of the Company or is merged with or into or consolidated with the Company set aside sufficient funds borrowed by it or a Restricted Subsidiary under the Credit Facility to make such repayment and (ii) shall have given irrevocable instructions to the lender under such Credit Facility, in a form acceptable to such agent lender, to direct borrowed funds to the repayment of such Old Notes no later than the Company shall be deemed to have been Incurred, as Business Day immediately following the case may be, at the time such Person becomes such a Restricted Subsidiary of the Company, or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the CompanyMerger Date.
Appears in 1 contract
Sources: Indenture (Pricellular Corp)
Limitation on Incurrence of Additional Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, after and each of the Issue DateGuarantors will not, directly or indirectlycreate, issue, create, incur, assume, guarantee or otherwise in any manner become directly or indirectly become liable for (including as a result of an 50 acquisition), with respect to or otherwise become responsible for, contingently or otherwise otherwise, the payment of (individually or and collectively, to "Incur" “incur” or, as appropriate, an "Incurrence"“incurrence”), any Indebtedness (other than Permitted Indebtedness. Neither ).
(b) This Indenture will not, however, prohibit the accrual following (collectively, “Permitted Indebtedness”):
(1) Indebtedness of interest 2degrees and its Subsidiaries due and owing to governmental entities or regulatory authorities in connection with telecommunications licenses (including the issuance of "pay in kind" securities or similar instruments permits, consents or approvals) or any renewal thereof, or Indebtedness of 2degrees and its Subsidiaries incurred to finance the payment of deposits for telecommunications licenses (or similar permits, consents or approvals) or any renewal thereof, to any governmental or regulatory authority related to a license (or similar permits, consents or approvals);
(i) Indebtedness represented by the Notes issued on the Issue Date (but excluding any Additional Notes), and (ii) Indebtedness under the Remaining Existing Notes (but not including any additional Existing Notes) (and any Permitted Refinancing Indebtedness in respect of the foregoing) in an aggregate principal amount, for clauses (i) and (ii), not to exceed $356,997,400 (or, if the principal amount of the Notes is increased in accordance with Section 4.26, $367,707,322) at any one time outstanding;
(3) any Indebtedness of the Company, any Restricted Subsidiary or any Guarantor outstanding on the Issue Date (other than (x) Existing Notes refinanced with the Notes on the Issue Date, (y) Indebtedness specified in clause (2) above or clause (6) below and (z) Indebtedness that could be incurred under clause (14) below that is outstanding on the Issue Date and which shall be deemed incurred under such accrued interestclause) and any Permitted Refinancing Indebtedness in respect thereof;
(4) the incurrence by the Company, any Restricted Subsidiary or any Guarantor of intercompany Indebtedness between or among the Company, any Restricted Subsidiaries or any Guarantors (other than New Zealand Financing Indebtedness); provided that (A) any such Indebtedness of an Issuer is unsecured and subordinated, pursuant to a written agreement, to the terms Company’s obligations under the Notes and this Indenture, (B) any such Indebtedness of a Guarantor is unsecured and, other than any such Indebtedness Incurred in compliance with this covenantrespect of any Company-Trilogy LLC Intercompany Loan, nor subordinated, pursuant to a written agreement, to such Guarantor’s Note Guarantee and (C) (i) any disposition, pledge or transfer of any such Indebtedness to a Person (other than (x) a disposition, pledge or transfer to the accretion Company, a Restricted Subsidiary or a Guarantor, or (y) a disposition, pledge or transfer of original issue discount, nor the mere extension any of the maturity Company’s right, title or interest in any Company-Trilogy LLC Intercompany Loan in connection with the creation, enforcement or foreclosure by or on behalf of the Holders or the holders of the 10% Notes of any Lien thereon that secures the obligations of the Company in respect of the Notes or the 10% Notes) and (ii) any transaction pursuant to which any Restricted Subsidiary that has Indebtedness shall owing to the Company, a Guarantor or another Restricted Subsidiary ceases to be a Restricted Subsidiary will, in each case, be deemed to be an Incurrence incurrence of Indebtedness. Notwithstanding the foregoing, if there exists no Default or Event such Indebtedness not permitted by this clause (4);
(5) guarantees of Default immediately prior and subsequent thereto, the Company may incur Indebtedness if the Company's Annualized Operating Cash Flow Ratio, after giving effect ’s Indebtedness or Indebtedness of any Restricted Subsidiary by 2degrees and its Subsidiaries if such guaranteed Indebtedness is otherwise permitted to the Incurrence of such Indebtedness, would have been less than 8 to 1. In addition, if there exists no Default or Event of Default immediately prior and subsequent thereto, the foregoing limitations will not apply to the Incurrence of be incurred under this Indenture;
(i6) Indebtedness represented by the Company or 10% Notes (and any of its Restricted Subsidiaries constituting Existing Indebtedness, reduced by repayments of and permanent reductions Permitted Refinancing Indebtedness in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and by repayments and permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms respect thereof, (ii) Indebtedness, in an aggregate principal amount not in excess to exceed $51.0 million at any one time outstanding;
(7) the incurrence by Trilogy LLC, 2degrees and Subsidiaries of $525,000,000, permitted under the Credit Agreement, reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and (b) an amount equal to the aggregate amount 2degrees of Indebtedness Incurred pursuant to clause (x)arising from agreements providing for guarantees, below, so long as such amounts Incurred pursuant to clause (x) remain outstanding; provided that, if there exists a Default indemnities or an Event of Default immediately prior or subsequent thereto, the Company and its Restricted Subsidiaries may Incur Indebtedness pursuant to this clause (ii) so long as the proceeds from such Incurrence are not used directly to pay any amounts owing obligations in respect of any Indebtednesspurchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, principal, interest and commitment feesshares of Capital Stock, other than with respect to guarantees or similar credit support given by Trilogy LLC, 2degrees and Subsidiaries of 2degrees of Indebtedness incurred by any Person (other than Trilogy LLC, 2degrees and Subsidiaries of 2degrees) acquiring all or any portion of such assets for the Notes and purpose of financing such acquisition;
(8) the Holdings Securities, (iii) Indebtedness of the Company evidenced incurrence by the SecuritiesCompany, (iv)(A) Permitted Acquisition Indebtedness by the Company that satisfies the provisions of clause (x) of the definition thereof or (B) Permitted Acquisition Indebtedness by any Restricted Subsidiary that satisfies the provisions of clause (y) of the definition thereof, (v) Indebtedness between the Company and or any Restricted Subsidiary of the Company or between Restricted Subsidiaries of the Company, provided that, in the case Guarantor of Indebtedness of the Company, such obligations shall be unsecured and subordinated in all respects to the Holders' rights pursuant to the Securities, and the date of any event that causes
a Restricted Subsidiary no longer to be a Restricted Subsidiary shall be an Incurrence Date with respect to such Indebtedness, (vi) Capitalized Lease Obligations and Purchase Money Indebtedness in an aggregate amount or aggregate principal amount, as the case may be, outstanding at any time not to exceed in the aggregate $15,000,000, provided that in the case of Purchase Money Indebt- edness, such Indebtedness shall not constitute less than 75% nor more than 100% of the cost (determined in accordance with GAAP) to the Company or such Restricted Subsidiary of the property purchased or leased with the proceeds thereof, (vii) Indebtedness of the Company or any Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company to the extent none of the foregoing results in the obligation to repay an obligation for money borrowed by any Person and are limited in aggregate amount to no greater than 10% of the fair market value of such business, assets or Restricted Subsidiary so disposed of, (viii) any guarantee by any Restricted Subsidiary of any Senior Indebtedness Incurred in compliance with this Section 4.12, (ix) Indebtedness of the Company or any Restricted Subsidiary under standby letters of credit or reimbursement obligations with respect thereto issued Currency Agreements entered into in the ordinary course of business and consistent not for speculative purposes;
(9) the incurrence by the Company, any Restricted Subsidiary or any Guarantor of Indebtedness under Interest Rate Agreements entered into in the ordinary course of business and not for speculative purposes;
(10) the incurrence of Indebtedness by the Company, any Restricted Subsidiary or any Guarantor in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with industry practices limited the borrowing of money or the obtaining of advances or credit;
(11) the incurrence of Indebtedness by the Company, any Restricted Subsidiary or any Guarantor arising from (A) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within 5 Business Days of incurrence, (B) bankers’ acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations, (C) completion guarantees provided or letters of credit obtained by the Company, any Restricted Subsidiary or any Guarantor, or in respect of performance, surety or appeal bonds provided, in the ordinary course of business; and (D) the financing of insurance premiums in the ordinary course of business;
(12) [reserved];
(13) [reserved];
(14) (x) prior to the consummation of the initial 2degrees Liquidity Event, Indebtedness incurred by 2degrees and its Subsidiaries in an aggregate principal amount at any one time outstanding not to exceed the greater of (A) NZ$245.0 million (including any such Indebtedness outstanding on the Issue Date) and (B) such other amount to $5,000,000 the extent that, after giving effect to the incurrence of such Indebtedness by 2degrees and its Subsidiaries and the application of the proceeds thereof, on a pro forma basis, the Consolidated Leverage Ratio of 2degrees and its Subsidiaries (as evidenced by an Officers’ Certificate to the Trustee (i) in respect of any such incurrence in excess of NZ$2.0 million, within five (5) Business Days of the date of any such incurrence and (ii) in respect of any other such incurrence, (a) within 60 days after the end of each of the first three fiscal quarters of each fiscal year of Trilogy LLC and (b) within 105 days after the end of each fiscal year of Trilogy LLC, in each case, setting forth in reasonable detail such calculation) would be less than 2.0 to 1.0; (y) at all times prior to and following the consummation of any 2degrees Liquidity Event, Indebtedness incurred by 2degrees and its Subsidiaries in respect of any Permitted Receivables Financing in an aggregate principal amount not to exceed NZ$50.0 million at any one time outstanding; and (z) at all times prior to and following the consummation of any 2degrees Liquidity Event, New Zealand Financing Indebtedness;
(x15) [reserved];
(16) the incurrence by the Company, any Restricted Subsidiary or any Guarantor of Indebtedness of to the Company extent that the net proceeds thereof are promptly deposited to defease or to satisfy and discharge the Notes; and
(other than 17) following the initial 2degrees Liquidity Event, Indebtedness permitted incurred by clauses (i) through (ix) or (xi) hereof) not to exceed $100,000,000 2degrees and its Subsidiaries in an aggregate principal amount at any one time outstanding not to exceed such amount to the extent that, after giving effect to the incurrence of such Indebtedness by 2degrees and its Subsidiaries and the application of the proceeds thereof, on a pro forma basis, the Consolidated Leverage Ratio of 2degrees and its Subsidiaries (xi) Refinancing Indebted ness Incurred as evidenced by an Officers’ Certificate to extend, renew, replace or refund Indebtedness permitted under clauses the Trustee (i) in respect of any such incurrence in excess of NZ$2.0 million, within five (as so reduced in amount), 5) Business Days of the date of any such incurrence and (ii) (as so reduced in amount)respect of any other such incurrence, (a) within 60 days after the end of each of the first three fiscal quarters of each fiscal year of Trilogy LLC and (b) within 105 days after the end of each fiscal year of Trilogy LLC, in each case, setting forth in reasonable detail such calculation) would be less than 1.5 to 1.0.
(c) Notwithstanding any other provision of this Indenture, for purposes of determining compliance with this Indenture, increases in Indebtedness solely due to fluctuations in the exchange rates of currencies will not be deemed to exceed the maximum amount that the Company, its Restricted Subsidiaries or the Guarantors may incur under this Indenture, and in no event shall the reclassification of any lease or other liability as Indebtedness due to a change in GAAP after the Issue Date be deemed to be an incurrence of Indebtedness.
(d) For purposes of determining any particular amount of Indebtedness under this Indenture:
(i) obligations with respect to letters of credit, guarantees or Liens, in each case supporting Indebtedness otherwise included in the determination of such particular amount, shall not be included;
(ii) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.10 will not be treated as Indebtedness;
(iii)) accrual of interest, accrual of dividends, the accretion of accreted value, the reclassification of Preferred Stock as Indebtedness due to a change in GAAP or the application thereof, the payment of dividends on Disqualified Capital Stock in the form of additional shares of the same class of Disqualified Capital Stock, the obligation to pay commitment fees and the payment of interest in the form of additional Indebtedness will not be treated as the incurrence of Indebtedness;
(iv) and in the case of any Indebtedness issued with original issue discount, only the accreted value of the Indebtedness shall be included; and
(xiv) in the case of Interest Swap Obligations, the amount of Indebtedness in respect thereof shall be the termination value of the agreement or arrangement giving rise to such obligations that would be payable by such Person at such time.
(e) In the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described in clause (b) of this paragraph. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (or that is a Non-Recourse Restricted Subsidiary designated to be a Restricted SubsidiarySection 4.06, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding at the time such Person becomes such a Restricted Subsidiary of the Company or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company shall be deemed to have been Incurred, as the case may be, at the time such Person becomes such a Restricted Subsidiary of the Company, or is merged with or into or consolidated with the Company or a Restricted Subsidiary in its sole discretion, shall be entitled to divide and classify an item of Indebtedness in more than one of the Companytypes of Indebtedness described in clause (b) of this Section 4.06, and may change the classification of an item of Indebtedness (or any portion thereof) to any other type of Indebtedness described in clause (b) of this Section 4.06 at any time. In determining the amount of Indebtedness outstanding under one of the types of Indebtedness described in clause (b) of this Section 4.06, any obligation of such Person or any other Person arising under any guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness shall be disregarded so long as it is permitted to be incurred by the Person or Persons incurring such obligation.
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