Limitation on Incurrence of Additional Indebtedness. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an 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 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 8.5 to 1.0 at any time prior to December 31, 2000 and 8.0 to 1.0 thereafter, and the application of the proceeds therefrom. In addition, 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: (i) Indebtedness of the Company or any of its Restricted Subsidiaries under a Credit Facility in an aggregate principal amount at any one time outstanding not to exceed $1.0 billion, reduced by (a) permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.14, (b) permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereof (to the extent actually made), (c) the principal amount of the 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 (d) any Indebtedness outstanding pursuant to clause (xiv); (ii) Indebtedness of a Restricted Subsidiary under one or more bank credit facilities provided such Indebtedness could be incurred by the Issuer under the Annualized Operating Cash Flow Ratio provision set forth in the second paragraph of this covenant; (iii) Indebtedness of the Company evidenced by the Securities; (iv) Indebtedness represented by the Old Notes or the Convertible Notes that remain outstanding after consummation of the Merger and the 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 and the Company's guarantee under the Credit Facility; (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 $20,000,000, provided that in the case of Purchase Money Indebtedness, such Indebtedness shall not constitute 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 Section 4.20; (ix) Indebtedness Incurred by the Company or any of its Restricted Subsidiaries in 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 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 $5.0 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 (including 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 (xi) or (xiv) hereof) not to exceed $75.0 million at any one time outstanding; (xiii) Refinancing Indebtedness Incurred to extend, renew, replace or refund Indebtedness permitted under clauses (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 (xiv) Refinancing Indebtedness Incurred by the Company to extend, renew, replace or refund Indebtedness permitted under clause (i) of this paragraph (plus any reasonably determined prepayment premium necessary to accomplish such refinancing and such reasonable fees and expenses incurred in connection therewith). For purposes of 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 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, (i) caused to be 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 Business Day immediately following the Merger Date.
Appears in 1 contract
Sources: Indenture (Pricellular Corp)
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, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an 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 and any Restricted Subsidiary may Incur Acquired 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 8.5 to 1.0 at any time prior to December 31, 2000 and 8.0 to 1.0 thereafter, and the application of the proceeds therefrom1. In addition, 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, 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 of by the Company or any of its Restricted Subsidiaries under a Credit Facility in an aggregate principal amount at any one time outstanding not to exceed $1.0 billionconstituting Existing Indebtedness, reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in under Section 4.14, (b) 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 (to the extent actually made), (c) the principal amount of the 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 (d) any Indebtedness outstanding pursuant to clause (xiv)thereof;
(ii) unsecured Indebtedness of a Restricted Subsidiary under one or more bank credit facilities provided such Indebtedness could be incurred Incurred by the Issuer under the Annualized Operating Cash Flow Ratio provision set forth Company or any Guarantor in the second paragraph of this covenantan aggregate principal amount outstanding at any time not to exceed $100,000,000 reduced by amounts Incurred pursuant to clause (x) below, so long as such amounts Incurred pursuant to clause (x) remain outstanding;
(iii) Indebtedness of Incurred by the Company evidenced by the SecuritiesInitial Securities and the Exchange Securities therefor and the guarantees thereof by Restricted Subsidiaries;
(iva) Permitted Acquisition Indebtedness represented by the Old Notes or Company that satisfies the Convertible Notes that remain outstanding after consummation provisions of clause (x) of the Merger and definition thereof or (b) Permitted Acquisition In- debtedness by any Restricted Subsidiary that satisfies the transactions consummated substantially contemporaneously therewithprovisions 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 Securities, and the Company's guarantee under the Credit Facilitydate 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 $20,000,00015,000,000; provided, provided however, that in the case of Purchase Money Indebtedness, 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 of any Indebtedness Incurred in accordance compliance with the provisions of Section 4.20;
(ix) Indebtedness Incurred by the Company or any of its Restricted Subsidiaries in 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 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 $5.0 million 5,000,000 at any one time outstanding;; and
(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 (including 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 (xi) or (xiv) hereof) not to exceed $75.0 million at any one time outstanding;
(xiiix) Refinancing 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) or ), (iv) of this paragraph and (plus any reasonably determined prepayment premium necessary to accomplish such refinancing and such reasonable fees and expenses incurred in connection therewith); and
(xiv) Refinancing Indebtedness Incurred by the Company to extend, renew, replace or refund Indebtedness permitted under clause (ix) of this paragraph (plus any reasonably determined prepayment premium necessary to accomplish such refinancing and such reasonable fees and expenses incurred in connection therewith)paragraph. For purposes of clause (i)(c) abovedetermining 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 transactions consummated substantially contemporaneously 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 Merger may include, without limitationsecond paragraph of this Section 4.12. In addition, the repayment Company may, at any time, change the classification of Old Notes outstanding Merger Date within one Business Day an item of Indebtedness (or any portion thereof) to any other clause or to the Merger Date if second paragraph of this Section, provided that the Company, upon consummation Company would be permitted to incur such item of the Merger, shall have, Indebtedness (or such portion thereof) pursuant to such instruments acceptable to other clause or the agent lender under second paragraph of this Section, as the Credit Facilitycase may be, at such time of reclassification. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (i) caused or that is a Non-Recourse Restricted Subsidiary designated to be set aside sufficient funds borrowed by it 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 under of the Credit Facility Company shall be deemed to make have been Incurred, as the case may be, at the time such repayment and (ii) shall have given irrevocable instructions to Person becomes such a Restricted Subsidiary of the lender under such Credit FacilityCompany, in or is merged with or into or consolidated with the Company or a form acceptable to such agent lender, to direct borrowed funds to Restricted Subsidiary of the repayment of such Old Notes no later than the Business Day immediately following the Merger DateCompany.
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, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an 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 Indebtedness and any Restricted Subsidiary may Incur Acquired 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 8.5 to 1.0 at any time prior to December 31, 2000 and 8.0 to 1.0 thereafter, and the application of the proceeds therefrom1. In addition, 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, 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 of by the Company or any of its Restricted Subsidiaries under a Credit Facility in an aggregate principal amount at any one time outstanding not to exceed $1.0 billionconstituting Existing Indebtedness, reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in under Section 4.14, (b) 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 (to the extent actually made), (c) the principal amount of the 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 (d) any Indebtedness outstanding pursuant to clause (xiv)thereof;
(ii) unsecured Indebtedness of a Restricted Subsidiary under one or more bank credit facilities provided such Indebtedness could be incurred Incurred by the Issuer under the Annualized Operating Cash Flow Ratio provision set forth Company or any Guarantor in the second paragraph of this covenantan aggregate principal amount outstanding at any time not to exceed $100,000,000 reduced by amounts Incurred pursuant to clause (x) below, so long as such amounts Incurred pursuant to clause (x) remain outstanding;
(iii) Indebtedness of Incurred by the Company evidenced by the SecuritiesInitial Securities and the Exchange Securities therefor and the guarantees thereof by Restricted Subsidiaries;
(iva) Permitted Acquisition Indebtedness represented by the Old Notes or Company that satisfies the Convertible Notes that remain outstanding after consummation provisions of clause (x) of the Merger and definition thereof or (b) Permitted Acquisition Indebtedness by any Restricted Subsidiary that satisfies the transactions consummated substantially contemporaneously therewithprovisions 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 Securities, and the Company's guarantee under the Credit Facilitydate 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 $20,000,00015,000,000; PROVIDED, provided HOWEVER, that in the case of Purchase Money Indebtedness, 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 of any Indebtedness Incurred in accordance compliance with the provisions of Section 4.20;
(ix) Indebtedness Incurred by the Company or any of its Restricted Subsidiaries in 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 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 $5.0 million 5,000,000 at any one time outstanding;; and
(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 (including 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 (xi) or (xiv) hereof) not to exceed $75.0 million at any one time outstanding;
(xiiix) Refinancing 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) or ), (iv) of this paragraph and (plus any reasonably determined prepayment premium necessary to accomplish such refinancing and such reasonable fees and expenses incurred in connection therewith); and
(xiv) Refinancing Indebtedness Incurred by the Company to extend, renew, replace or refund Indebtedness permitted under clause (ix) of this paragraph (plus any reasonably determined prepayment premium necessary to accomplish such refinancing and such reasonable fees and expenses incurred in connection therewith)paragraph. For purposes of clause (i)(c) abovedetermining 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 transactions consummated substantially contemporaneously 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 Merger may include, without limitationsecond paragraph of this Section 4.12. In addition, the repayment Company may, at any time, change the classification of Old Notes outstanding Merger Date within one Business Day an item of Indebtedness (or any portion thereof) to any other clause or to the Merger Date if second paragraph of this Section, provided that the Company, upon consummation Company would be permitted to incur such item of the Merger, shall have, Indebtedness (or such portion thereof) pursuant to such instruments acceptable to other clause or the agent lender under second paragraph of this Section, as the Credit Facilitycase may be, at such time of reclassification. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (i) caused or that is a Non-Recourse Restricted Subsidiary designated to be set aside sufficient funds borrowed by it 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 under of the Credit Facility Company shall be deemed to make have been Incurred, as the case may be, at the time such repayment and (ii) shall have given irrevocable instructions to Person becomes such a Restricted Subsidiary of the lender under such Credit FacilityCompany, in or is merged with or into or consolidated with the Company or a form acceptable to such agent lender, to direct borrowed funds to Restricted Subsidiary of the repayment of such Old Notes no later than the Business Day immediately following the Merger DateCompany.
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 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 and any Restricted Subsidiary may Incur Acquired 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 8.5 8 to 1.0 at any time prior to December 31, 2000 and 8.0 to 1.0 thereafter, and the application of the proceeds therefrom1. In addition, 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, 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 of by the Company or any of its Restricted Subsidiaries under a Credit Facility in an aggregate principal amount at any one time outstanding not to exceed $1.0 billionconstituting Existing Indebtedness, reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.14, (b) 4.14 and by repayments and permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereof (to the extent actually made)thereof, (c) the principal amount of the 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 (d) any Indebtedness outstanding pursuant to clause (xiv);
(ii) Indebtedness of a Restricted Subsidiary under one or more bank credit facilities provided such Indebtedness could be incurred by the Issuer under the Annualized Operating Cash Flow Ratio provision set forth in the second paragraph of this covenant;
(iii) Indebtedness of the Company evidenced by the Securities;
, (iii)(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, (iv) Indebtedness represented by the Old Notes or the Convertible Notes that remain outstanding after consummation of the Merger and the 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 and the Company's guarantee under the Credit Facility;
Securities, (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 $20,000,00010,000,000, provided that in the case of Purchase Money Indebtedness, 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 made in accordance with the provisions of Section 4.20;
any (ixA) Senior Indebtedness Incurred by the Company in compliance with this covenant or any of its Restricted Subsidiaries in 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 applicableB) of such Indebtedness, together with any other outstanding Indebtedness Incurred pursuant to this clause (ix)) of this paragraph, does not exceed $25.0 million at any one time outstanding;
(xviii) 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 $5.0 million 2,000,000 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 (including Indebtedness subject to commitments) to which such Interest Rate Protection Obligations relate;
(xiiix) Indebtedness of the Company (other than Indebtedness permitted by clauses (i) through (xiviii) or (xivx) hereof) not to exceed $75.0 million 50,000,000 at any one time outstanding;
outstanding and (xiiix) Refinancing Indebtedness Incurred to extend, renew, replace or refund Indebtedness permitted under clauses (i) (as so reduced in amount), (ii), (iii) or and (ivx) of this paragraph (plus paragraph. Indebtedness of any reasonably determined prepayment premium necessary to accomplish such refinancing and such reasonable fees and expenses incurred in connection therewith); and
(xiv) Refinancing Indebtedness Incurred by Person that is not a Restricted Subsidiary of the Company (or that is a Non-Recourse Restricted Subsidiary designated to extendbe a Restricted Subsidiary, renewbut no longer a Non-Recourse Restricted Subsidiary), replace which Indebtedness is outstanding at the time such Person becomes such a Restricted Subsidiary of the Company or refund Indebtedness permitted under clause (i) of this paragraph (plus any reasonably determined prepayment premium necessary to accomplish such refinancing and such reasonable fees and expenses incurred in connection therewith). For purposes of clause (i)(c) above, the transactions consummated substantially contemporaneously is merged with or into or consolidated with the Merger may include, without limitation, the repayment of Old Notes outstanding Merger Date within one Business Day of the 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, (i) caused to be set aside sufficient funds borrowed by it Company or a Restricted Subsidiary under of the Credit Facility Company shall be deemed to make have been Incurred, as the case may be, at the time such repayment and (ii) shall have given irrevocable instructions to Person becomes such a Restricted Subsidiary of the lender under such Credit FacilityCompany, in or is merged with or into or consolidated with the Company or a form acceptable to such agent lender, to direct borrowed funds to Restricted Subsidiary of the repayment of such Old Notes no later than the Business Day immediately following the Merger DateCompany.
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 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 and any Restricted Subsidiary may Incur Acquired 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 8.5 8 to 1.0 at any time prior to December 31, 2000 and 8.0 to 1.0 thereafter, and the application of the proceeds therefrom1. In addition, 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, 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 of by the Company or any of its Restricted Subsidiaries under a Credit Facility in an aggregate principal amount at any one time outstanding not to exceed $1.0 billionconstituting Existing Indebtedness, reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.14, (b) 4.15 and by repayments and permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereof 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 extent actually made), (c) the principal aggregate amount of the 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 (d) any Indebtedness outstanding Incurred pursuant to clause (xivx);
, 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) Indebtedness so long as the proceeds from such Incurrence are not used directly to pay any amounts owing in respect of a Restricted Subsidiary under one or more bank credit facilities provided such Indebtedness could be incurred by any Indebtedness, including, without limitation, principal, interest and commitment fees, other than with respect to the Issuer under Notes and the Annualized Operating Cash Flow Ratio provision set forth in the second paragraph of this covenant;
Holdings Securities, (iii) Indebtedness of the Company evidenced by the Securities;
, (iviv)(A) Permitted Acquisition Indebtedness represented by the Old Notes or Company that satisfies the Convertible Notes that remain outstanding after consummation provisions of clause (x) of the Merger and definition thereof or (B) Permitted Acquisition Indebtedness by any Restricted Subsidiary that satisfies the transactions consummated substantially contemporaneously therewith;
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 Securities, and the Company's guarantee under the Credit Facility;
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 $20,000,00015,000,000, provided that in the case of Purchase Money Indebtedness, 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 of any Senior Indebtedness Incurred in accordance compliance with the provisions of this Section 4.20;
4.12, (ix) Indebtedness Incurred by the Company or any of its Restricted Subsidiaries in 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 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 $5.0 million 5,000,000 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 (including Indebtedness subject to commitments) to which such Interest Rate Protection Obligations relate;
(xiix) Indebtedness of the Company (other than Indebtedness permitted by clauses (i) through (xiix) or (xivxi) hereof) not to exceed $75.0 million 100,000,000 at any one time outstanding;
outstanding and (xiiixi) Refinancing 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) or ), (iv) of this paragraph and (plus any reasonably determined prepayment premium necessary to accomplish such refinancing and such reasonable fees and expenses incurred in connection therewith); and
(xiv) Refinancing Indebtedness Incurred by the Company to extend, renew, replace or refund Indebtedness permitted under clause (ixi) of this paragraph paragraph. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (plus any reasonably determined prepayment premium necessary or that is a Non-Recourse Restricted Subsidiary designated to accomplish be a Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding at the time such refinancing and Person becomes such reasonable fees and expenses incurred in connection therewith). For purposes a Restricted Subsidiary of clause (i)(c) above, the transactions consummated substantially contemporaneously Company or is merged with or into or consolidated with the Merger may include, without limitation, the repayment of Old Notes outstanding Merger Date within one Business Day of the 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, (i) caused to be set aside sufficient funds borrowed by it Company or a Restricted Subsidiary under of the Credit Facility Company shall be deemed to make have been Incurred, as the case may be, at the time such repayment and (ii) shall have given irrevocable instructions to Person becomes such a Restricted Subsidiary of the lender under such Credit FacilityCompany, in or is merged with or into or consolidated with the Company or a form acceptable to such agent lender, to direct borrowed funds to Restricted Subsidiary of the repayment of such Old Notes no later than the Business Day immediately following the Merger DateCompany.
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, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an 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, (x) the Company may Incur Indebtedness if, after giving effect to the Incurrence of such Indebtedness, the Company's Annualized Operating Cash Flow Ratio would have been less than 8.5 to 1 and (y) any Restricted Subsidiary may Incur Acquired Indebtedness if the Companysuch Restricted Subsidiary's Annualized Operating Cash Flow Ratio, after giving effect to the Incurrence of such Indebtedness, would have been less than 8.5 to 1.0 at any time prior to December 31, 2000 and 8.0 to 1.0 thereafter, and the application of the proceeds therefrom1. In addition, 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, 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 of 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 under a Credit Facility 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 at any one time outstanding not to exceed in excess of $1.0 billion525,000,000, permitted under the Credit Facility, reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.14, 4.15 and (b) permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereof (an amount equal to the extent actually made), sum of (cA) the outstanding principal amount of the Old PCW Secured 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 (dB) any the aggregate amount of Indebtedness outstanding Incurred pursuant to clause (xiv);
x) below to refinance the PCW Secured Notes or the Credit Facility 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) Indebtedness so long as the proceeds from such Incurrence are not used, directly or indirectly, to pay any amounts owing in respect of a Restricted Subsidiary under one or more bank credit facilities provided such Indebtedness could be incurred by any Indebtedness, including, without limitation, principal, interest and commitment fees, other than with respect to the Issuer under the Annualized Operating Cash Flow Ratio provision set forth in the second paragraph of this covenantSecurities;
(iii) Indebtedness of the Company evidenced by the Securities;
(iv) (a) Permitted Acquisition Indebtedness represented by the Old Notes or the Convertible Notes that remain outstanding after consummation of the Merger and Company or any Restricted Subsidiaries that satisfies the transactions consummated substantially contemporaneously therewithprovisions of clause (x) of the definition thereof or (b) Permitted Acquisition Indebtedness of 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 Securities, and the Company's guarantee under the Credit Facilitydate 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 $20,000,000, provided that in the case of Purchase Money Indebtedness, such Indebtedness shall not constitute 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 thereof15,000,000;
(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 Section 4.20;
(ix) Indebtedness Incurred by the Company or any of its Restricted Subsidiaries in 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 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 $5.0 million 5,000,000 at any one time outstanding;
(xi) Interest Rate Protection Obligations relating to (Aix) 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 (including Indebtedness subject to commitments) to which such Interest Rate Protection Obligations relate;
(xii) Indebtedness of the Company (other than Indebtedness permitted by clauses the first paragraph of this Section 4.12 or clause (i) through (xiviii) or (xivx) hereofof this Section 4.12) not to exceed $75.0 million 100,000,000 at any one time outstanding;; and
(xiiix) Refinancing Indebtedness Incurred to extend, renew, replace or refund Indebtedness permitted under the first paragraph of this Section 4.12 or clauses (i) (as so reduced in amount), (ii) (as so reduced in amount), (iii) or ), (iv) of this paragraph and (plus any reasonably determined prepayment premium necessary to accomplish such refinancing and such reasonable fees and expenses incurred in connection therewith); and
(xiv) Refinancing Indebtedness Incurred by the Company to extend, renew, replace or refund Indebtedness permitted under clause (ix) of this paragraph (plus any reasonably determined prepayment premium necessary to accomplish such refinancing and such reasonable fees and expenses incurred in connection therewith)paragraph. For purposes of clause (i)(c) abovedetermining 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 transactions consummated substantially contemporaneously 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 Merger may include, without limitationsecond paragraph of this Section 4.12. In addition, the repayment Company may, at any time, change the classification of Old Notes outstanding Merger Date within one Business Day an item of Indebtedness (or any portion thereof) to any other clause or to the Merger Date if second paragraph of this Section, provided that the Company, upon consummation Company would be permitted to Incur such item of the Merger, shall have, Indebtedness (or such portion thereof) pursuant to such instruments acceptable to other clause or the agent lender under second paragraph of this Section 4.12, as the Credit Facilitycase may be, at such time of reclassification. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (i) caused or that is a Non-Recourse Restricted Subsidiary designated to be set aside sufficient funds borrowed by it 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 under of the Credit Facility Company shall be deemed to make have been Incurred, as the case may be, at the time such repayment and (ii) shall have given irrevocable instructions to Person becomes such a Restricted Subsidiary of the lender under such Credit FacilityCompany, in or is merged with or into or consolidated with the Company or a form acceptable to such agent lender, to direct borrowed funds to Restricted Subsidiary of the repayment of such Old Notes no later than the Business Day immediately following the Merger DateCompany.
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 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 and any Restricted Subsidiary may Incur Acquired 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 8.5 8 to 1.0 at any time prior to December 31, 2000 and 8.0 to 1.0 thereafter, and the application of the proceeds therefrom1. In addition, 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, 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 of by the Company or any of its Restricted Subsidiaries under a Credit Facility in an aggregate principal amount at any one time outstanding not to exceed $1.0 billionconstituting Existing Indebtedness, reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.14, (b) 4.15 and by repayments and permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereof 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 extent actually made), (c) the principal aggregate amount of the 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 (d) any Indebtedness outstanding Incurred pursuant to clause (xivx);
, 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) Indebtedness so long as the proceeds from such Incurrence are not used directly to pay any amounts owing in respect of a Restricted Subsidiary under one or more bank credit facilities provided such Indebtedness could be incurred by any Indebtedness, including, without limitation, principal, interest and commitment fees, other than with respect to the Issuer under Notes and the Annualized Operating Cash Flow Ratio provision set forth in the second paragraph of this covenant;
Holdings Securities, (iii) Indebtedness of the Company evidenced by the Securities;
, (iviv)(A) Permitted Acquisition Indebtedness represented by the Old Notes or Company that satisfies the Convertible Notes that remain outstanding after consummation provisions of clause (x) of the Merger and definition thereof or (B) Permitted Acquisition Indebtedness by any Restricted Subsidiary that satisfies the transactions consummated substantially contemporaneously therewith;
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 Securities, and the Company's guarantee under the Credit Facility;
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 $20,000,00015,000,000, provided that in the case of Purchase Money IndebtednessIndebt 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 made of any Senior Indebtedness Incurred in accordance compliance with the provisions of this Section 4.20;
4.12, (ix) Indebtedness Incurred by the Company or any of its Restricted Subsidiaries in 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 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 ▇▇▇▇ bursement obligations with respect thereto issued in the ordinary course of business busi ness and consistent with industry practices limited in aggregate amount to $5.0 million 5,000,000 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 (including Indebtedness subject to commitments) to which such Interest Rate Protection Obligations relate;
(xiix) Indebtedness of the Company (other than Indebtedness permitted by clauses (i) through (xiix) or (xivxi) hereof) not to exceed $75.0 million 100,000,000 at any one time outstanding;
outstanding and (xiiixi) Refinancing Indebtedness 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) or ), (iv) of this paragraph and (plus any reasonably determined prepayment premium necessary to accomplish such refinancing and such reasonable fees and expenses incurred in connection therewith); and
(xiv) Refinancing Indebtedness Incurred by the Company to extend, renew, replace or refund Indebtedness permitted under clause (ixi) of this paragraph paragraph. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (plus any reasonably determined prepayment premium necessary or that is a Non-Recourse Restricted Subsidiary designated to accomplish be a Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding at the time such refinancing and Person becomes such reasonable fees and expenses incurred in connection therewith). For purposes a Restricted Subsidiary of clause (i)(c) above, the transactions consummated substantially contemporaneously Company or is merged with or into or consolidated with the Merger may include, without limitation, the repayment of Old Notes outstanding Merger Date within one Business Day of the 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, (i) caused to be set aside sufficient funds borrowed by it Company or a Restricted Subsidiary under of the Credit Facility Company shall be deemed to make have been Incurred, as the case may be, at the time such repayment and (ii) shall have given irrevocable instructions to Person becomes such a Restricted Subsidiary of the lender under such Credit FacilityCompany, in or is merged with or into or consolidated with the Company or a form acceptable to such agent lender, to direct borrowed funds to Restricted Subsidiary of the repayment of such Old Notes no later than the Business Day immediately following the Merger DateCompany.
Appears in 1 contract
Limitation on Incurrence of Additional Indebtedness. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an 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 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 8.5 to 1.0 at any time prior to December 31, 2000 and 8.0 to 1.0 thereafter, and the application of the proceeds therefrom. In addition, 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:
(i) Indebtedness of the Company or any of its Restricted Subsidiaries under a Credit Facility in an aggregate principal amount at any one time outstanding not to exceed $1.0 billion, reduced by (a) permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.14, (b) permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereof (to the extent actually made), (c) the principal amount of the 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 (d) any Indebtedness outstanding pursuant to clause (xiv);
(ii) Indebtedness of a Restricted Subsidiary under one or more bank credit facilities provided such Indebtedness could be incurred by the Issuer under the Annualized Operating Cash Flow Ratio provision set forth in the second paragraph of this covenant;
(iii) Indebtedness of the Company evidenced by the Securities;
(iv) Indebtedness represented by the Old Notes or the Convertible Notes that remain outstanding after consummation of the Merger and the 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 and the Company's guarantee under the Credit Facility;
(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 $20,000,000, provided that in the case of Purchase Money Indebtedness, such Indebtedness shall not constitute 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 Section 4.20;
(ix) Indebtedness Incurred by the Company or any of its Restricted Subsidiaries in 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 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 $5.0 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 (including 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 (xi) or (xiv) hereof) not to exceed $75.0 million at any one time outstanding;
(xiii) Refinancing Indebtedness Incurred to extend, renew, replace or refund Indebtedness permitted under clauses (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
(xiv) Refinancing Indebtedness Incurred by the Company to extend, renew, replace or refund Indebtedness permitted under clause (i) of this paragraph (plus any reasonably determined prepayment premium necessary to accomplish such refinancing and such reasonable fees and expenses incurred in connection therewith). For purposes of 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 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, (i) caused to be 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 Business Day immediately following the Merger Date.
Appears in 1 contract
Limitation on Incurrence of Additional Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectlyand each of the Guarantors will not, create, issue, create, incur, assume, guarantee or otherwise in any manner become directly or indirectly become liable for (including as a result of an 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 such Indebtedness not permitted by this clause (4);
(5) guarantees of the foregoing, if there exists no Default Company’s Indebtedness or Event Indebtedness of Default immediately prior and subsequent thereto, the Company may Incur Indebtedness and any Restricted Subsidiary may Incur Acquired by 2degrees and its Subsidiaries if such guaranteed Indebtedness if is otherwise permitted to be incurred under this Indenture;
(6) Indebtedness represented by the 10% Notes (and any Permitted Refinancing Indebtedness in respect thereof) in an aggregate principal amount not to exceed $51.0 million at any one time outstanding;
(7) the incurrence by Trilogy LLC, 2degrees and Subsidiaries of 2degrees of Indebtedness arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than 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 purpose of financing such acquisition;
(8) the incurrence by the Company's Annualized Operating Cash Flow Ratio, after giving effect any Restricted Subsidiary or any Guarantor of Indebtedness under Currency Agreements entered into in the ordinary course of business and 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 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 Incurrence of such Indebtedness, would have been less than 8.5 to 1.0 at any time prior to December 31, 2000 and 8.0 to 1.0 thereafter, and the application consummation of the proceeds therefrom. In additioninitial 2degrees Liquidity Event, the foregoing limitations will not apply to the Incurrence of the following; provided that, except in the case of clauses (i), (vii), (viii) Indebtedness incurred by 2degrees and (xi) below, there exists no Default or Event of Default immediately prior and subsequent thereto:
(i) Indebtedness of the Company or any of its Restricted Subsidiaries under a Credit Facility in an aggregate principal amount at any one time outstanding not to exceed $1.0 billionthe greater of (A) NZ$245.0 million (including any such Indebtedness outstanding on the Issue Date) and (B) such other amount to the extent that, reduced 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) permanent reductions in commitments in satisfaction within 60 days after the end of each of the Net Cash Proceeds application requirement set forth in Section 4.14, first three fiscal quarters of each fiscal year of Trilogy LLC and (b) permanent reductions within 105 days after the end of each fiscal year of Trilogy LLC, in amounts outstanding pursuant each case, setting forth in reasonable detail such calculation) would be less than 2.0 to scheduled amortizations 1.0; (y) at all times prior to and mandatory prepayments in accordance with following the terms thereof (to the extent actually made), (c) the principal amount of the 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 (d) any 2degrees Liquidity Event, Indebtedness outstanding pursuant to clause (xiv);
(ii) Indebtedness of a Restricted Subsidiary under one or more bank credit facilities provided such Indebtedness could be incurred by the Issuer under the Annualized Operating Cash Flow Ratio provision set forth 2degrees and its Subsidiaries in the second paragraph respect of this covenant;
(iii) Indebtedness of the Company evidenced by the Securities;
(iv) Indebtedness represented by the Old Notes or the Convertible Notes that remain outstanding after consummation of the Merger and the 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 and the Company's guarantee under the Credit Facility;
(vi) Capitalized Lease Obligations and Purchase Money Indebtedness Permitted Receivables Financing in an aggregate principal amount or aggregate principal amount, as the case may be, outstanding at any time not to exceed in the aggregate $20,000,000, provided that in the case of Purchase Money Indebtedness, such Indebtedness shall not constitute 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 Section 4.20;
(ix) Indebtedness Incurred by the Company or any of its Restricted Subsidiaries in 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 clause (ix), does not exceed $25.0 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) Indebtedness of [reserved];
(16) the Company or incurrence by the Company, any Restricted Subsidiary under standby letters or any Guarantor of credit Indebtedness to the extent that the net proceeds thereof are promptly deposited to defease or reimbursement obligations with respect thereto issued to satisfy and discharge the Notes; and
(17) following the initial 2degrees Liquidity Event, Indebtedness incurred by 2degrees and its Subsidiaries in the ordinary course of business and consistent with industry practices limited in an aggregate principal amount to $5.0 million at any one time outstandingoutstanding 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 (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 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;
(xiii) Interest Rate Protection Obligations relating any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.10 will not be treated as Indebtedness;
(Aiii) 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 Company or any Restricted Subsidiary (which Indebtedness is otherwise permitted same class of Disqualified Capital Stock, the obligation to be Incurred under this covenant) or (B) Indebtedness for which a lender has provided a pay commitment in an amount reasonably anticipated to be Incurred by fees and the Company or any Restricted Subsidiary payment of interest in the 12 months after such Interest Rate Protection Obligations has been Incurred; providedform of additional Indebtedness will not be treated as the incurrence of Indebtedness;
(iv) in the case of any Indebtedness issued with original issue discount, however, that only the notional principal amount of such Interest Rate Protection Obligation does not exceed the principal amount accreted value of the Indebtedness (including 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 (xi) or (xiv) hereof) not to exceed $75.0 million at any one time outstanding;
(xiii) Refinancing Indebtedness Incurred to extend, renew, replace or refund Indebtedness permitted under clauses (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)shall be included; and
(xivv) Refinancing in the case of Interest Swap Obligations, the amount of Indebtedness Incurred 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 Company to extend, renew, replace or refund event that an item of Indebtedness permitted under meets the criteria of more than one of the types of Indebtedness described in clause (ib) of this paragraph (plus any reasonably determined prepayment premium necessary to accomplish such refinancing and such reasonable fees and expenses incurred in connection therewith). For purposes of clause (i)(c) aboveSection 4.06, 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 Merger Date if the Company, upon consummation in its sole discretion, shall be entitled to divide and classify an item of Indebtedness in more than one of the Mergertypes 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 have, pursuant to such instruments acceptable to the agent lender under the Credit Facility, (i) caused be disregarded so long as it is permitted to be set aside sufficient funds borrowed incurred by it the Person or a Restricted Subsidiary under the Credit Facility to make Persons incurring 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 Business Day immediately following the Merger Dateobligation.
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, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an acquisition), or otherwise become responsible for, contingently or otherwise (individually or collectively, to "Incur" or, as appropriate, an "Incurrence")the 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 foregoing, if there exists no Default or Event of Default immediately prior and subsequent thereto, the Company may 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 8.5 to 1.0 at any time prior to December 31, 2000 and 8.0 to 1.0 thereafter, and the application of the proceeds therefrom. In addition, 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:
(i) Indebtedness of the Company or any of its Restricted Subsidiaries under a Credit Facility in an aggregate principal amount at any one time outstanding not to exceed $1.0 billion, reduced by (a) permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.14, (b) permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereof (to the extent actually made), (c) the principal amount of the 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 (d) any Indebtedness outstanding pursuant to clause (xiv);
(ii) Indebtedness of a Restricted Subsidiary under one or more bank credit facilities provided such Indebtedness could be incurred by the Issuer under the Annualized Operating Cash Flow Ratio provision set forth in the second paragraph for purposes of this covenant;
(iii) Indebtedness of the Company evidenced by the Securities;
(iv) Indebtedness represented by the Old Notes or the Convertible Notes that remain outstanding after consummation of the Merger and the 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 and the Company's guarantee under the Credit Facility;
(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 $20,000,000, provided that in the case of Purchase Money Indebtedness, such Indebtedness shall not constitute 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 Section 4.20;
(ix) Indebtedness Incurred by the Company or any of its Restricted Subsidiaries in 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 Business3.16; 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 any such Indebtedness, together with any other outstanding additional Indebtedness Incurred pursuant to this clause (ix)Section 3.16 will be counted as Indebtedness outstanding thereunder for purposes of any future Incurrence under this Section 3.16. Notwithstanding any other provision of this Section 3.16, does not exceed $25.0 million at any one time outstanding;
(x) the maximum amount of Indebtedness of that 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 may Incur pursuant to $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 this Section 3.16, shall not be deemed to be Incurred under this covenant) exceeded as a result solely of fluctuations in exchange rates 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 (including 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 (xi) or (xiv) hereof) not to exceed $75.0 million at any one time outstanding;
(xiii) Refinancing Indebtedness Incurred to extend, renew, replace or refund Indebtedness permitted under clauses (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
(xiv) Refinancing Indebtedness Incurred by the Company to extend, renew, replace or refund Indebtedness permitted under clause (i) of this paragraph (plus any reasonably determined prepayment premium necessary to accomplish such refinancing and such reasonable fees and expenses incurred in connection therewith). For purposes of 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 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, (i) caused to be 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 Business Day immediately following the Merger Datecurrency 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 Indebtedness and any Restricted Subsidiary may Incur Acquired 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 8.5 8 to 1.0 at any time prior to December 31, 2000 and 8.0 to 1.0 thereafter, and the application of the proceeds therefrom1. In addition, 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, 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 of by the Company or any of its Restricted Subsidiaries under a Credit Facility in an aggregate principal amount at any one time outstanding not to exceed $1.0 billionconstituting Existing Indebtedness, reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.14, (b) 4.15 and by repayments and permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereof 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 extent actually made), (c) the principal aggregate amount of the 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 (d) any Indebtedness outstanding Incurred pursuant to clause (xivx);
, 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) Indebtedness so long as the proceeds from such Incurrence are not used directly to pay any amounts owing in respect of a Restricted Subsidiary under one or more bank credit facilities provided such Indebtedness could be incurred by any Indebtedness, including, without limitation, principal, interest and commitment fees, other than with respect to the Issuer under Notes and the Annualized Operating Cash Flow Ratio provision set forth in the second paragraph of this covenant;
Holdings Securities, (iii) Indebtedness of the Company evidenced by the Securities;
, (iviv)(A) Permitted Acquisition Indebtedness represented by the Old Notes or Company that satisfies the Convertible Notes that remain outstanding after consummation provisions of clause (x) of the Merger and definition thereof or (B) Permitted Acquisition Indebtedness by any Restricted Subsidiary that satisfies the transactions consummated substantially contemporaneously therewith;
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 Securities, and the Company's guarantee under the Credit Facility;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 $20,000,00015,000,000, provided that in the case of Purchase Money IndebtednessIndebt- 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 made of any Senior Indebtedness Incurred in accordance compliance with the provisions of this Section 4.20;
4.12, (ix) Indebtedness Incurred by the Company or any of its Restricted Subsidiaries in 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 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 $5.0 million 5,000,000 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 (including Indebtedness subject to commitments) to which such Interest Rate Protection Obligations relate;
(xiix) Indebtedness of the Company (other than Indebtedness permitted by clauses (i) through (xiix) or (xivxi) hereof) not to exceed $75.0 million 100,000,000 at any one time outstanding;
outstanding and (xiiixi) Refinancing Indebtedness 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) or ), (iv) of this paragraph and (plus any reasonably determined prepayment premium necessary to accomplish such refinancing and such reasonable fees and expenses incurred in connection therewith); and
(xiv) Refinancing Indebtedness Incurred by the Company to extend, renew, replace or refund Indebtedness permitted under clause (ixi) of this paragraph paragraph. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (plus any reasonably determined prepayment premium necessary or that is a Non-Recourse Restricted Subsidiary designated to accomplish be a Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding at the time such refinancing and Person becomes such reasonable fees and expenses incurred in connection therewith). For purposes a Restricted Subsidiary of clause (i)(c) above, the transactions consummated substantially contemporaneously Company or is merged with or into or consolidated with the Merger may include, without limitation, the repayment of Old Notes outstanding Merger Date within one Business Day of the 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, (i) caused to be set aside sufficient funds borrowed by it Company or a Restricted Subsidiary under of the Credit Facility Company shall be deemed to make have been Incurred, as the case may be, at the time such repayment and (ii) shall have given irrevocable instructions to Person becomes such a Restricted Subsidiary of the lender under such Credit FacilityCompany, in or is merged with or into or consolidated with the Company or a form acceptable to such agent lender, to direct borrowed funds to Restricted Subsidiary of the repayment of such Old Notes no later than the Business Day immediately following the Merger DateCompany.
Appears in 1 contract