Additional Permitted Indebtedness. Section 1.01(84) of the Credit Agreement is hereby amended by: (a) deleting sub-section 1.10(84)(xv) in its entirety and replacing it with the following: "Indebtedness in connection with the issuance of preferred securities by a statutory trust to a pooling vehicle sponsored by Sandler X'Xxxxx & Partners L.P. (the "Second Round Trust Pool Securities") provided that (i) there shall be no cash redemption of the Second Round Trust Pool Securities without the prior written consent of the Majority of the Lenders; (ii) a Default or an Event of Default under this Agreement is not a default or event of default in respect of such indebtedness and acceleration of the Outstanding Obligations does not result in an acceleration of the obligations under the debentures (the "Second Round Trust Pool Debentures") or the Guarantees issued in connection with the Second Round Trust Pool Securities; (iii) no cash dividends may be paid on the Second Round Trust Pool Securities so long as a Default or Event of Default under this Agreement has occurred and is continuing; and (iv) the terms and conditions of the Second Round Trust Pool Securities are otherwise satisfactory to the Majority of the Lenders, provided that the aggregate indebtedness in respect of the Second Round Trust Pool Debentures does not exceed US $15,464,000." (b) deleting the period found at the end of sub-section 1.01(84)(xviii) and replacing such period with a semi-colon, by adding the word "and" immediately following the semi-colon and by adding the following as sub-section 1.01(84)(xix): (xix) Indebtedness of the Borrowers in connection with the issuance, pursuant to up to four transactions, of preferred securities to one or more pooling vehicles by any one of up to four statutory trusts (the "Fourth Round Trust Pool Securities"); provided that: (i) there shall be no cash redemption of any of the Fourth Round Trust Pool Securities without the prior written consent of the Majority of the Lenders; (ii) a Default or an Event of Default under this Agreement is not a default or event of default in respect of such Indebtedness and acceleration of the Outstanding Obligations does not result in an acceleration of the obligations under the debentures issued in connection with the Fourth Round Trust Pool Securities (the "Fourth Round Trust Pool Debentures"), or any Guarantees issued in connection with the Fourth Round Trust Pool Debentures; (iii) no cash dividends may be paid on the Fourth Round Trust Pool Securities so long as a Default or Event of Default under this Agreement has occurred and is continuing; (iv) the Administrative Agent has received: (A) all material documentation as determined by the Agent in its sole discretion relating to the Fourth Round Trust Pool Debentures, the Fourth Round Trust Pool Securities, including, without limitation, all materials filed with any securities commission, containing terms and conditions satisfactory to the Agent and the Majority of the Lenders; and (B) and executed intercreditor agreement with the holders of the Fourth Round Trust Pool Securities and the Fourth Round Trust Pool Debentures or such other evidence of subordination as may be satisfactory to the Agent and the Majority of the Lenders in respect of the obligations of the Borrowers, the Guarantor or their Subsidiaries to the holders of the Fourth Round Trust Pool Securities and the Fourth Round Trust Pool Debentures, to provide, among other things, for subordination of the obligations of the Borrowers, the Guarantor and the Subsidiaries in connection with the Fourth Round Trust Pool Securities and the Fourth Round Trust Pool Debentures to the payment in full of the Outstanding Obligations; (v) none of the statutory trusts issuing the Fourth Round Trust Pool Debentures shall incur any debts, liabilities or obligations other than reasonable fees and expenses of the trustees under the Fourth Round Trust Pool Debentures (acting solely in its capacity as trustee and not in their individual capacity), and the principal, premium (if any) and interest in respect of the Fourth Round Trust Pool Securities; (vi) the aggregate indebtedness in respect of the Fourth Round Trust Pool Debentures does not exceed US $65,000,000 in the aggregate, without the prior written consent of the Majority of the Lenders; and (vii) the terms and conditions of each of the Fourth Round Trust Pool Securities are otherwise satisfactory to the Majority of the Lenders."
Appears in 1 contract
Additional Permitted Indebtedness. Section 1.01(84) of Notwithstanding the Credit Agreement is hereby amended by:
foregoing paragraph (a) deleting sub-section 1.10(84)(xv) in its entirety ), the Borrower and replacing it with the following: "Indebtedness in connection with the issuance of preferred securities by a statutory trust to a pooling vehicle sponsored by Sandler X'Xxxxx & Partners L.P. (the "Second Round Trust Pool Securities") provided that (i) there shall be no cash redemption of the Second Round Trust Pool Securities without the prior written consent of the Majority of the Lenders; (ii) a Default or an Event of Default under this Agreement is not a default or event of default in respect of such indebtedness and acceleration of the Outstanding Obligations does not result in an acceleration of the obligations under the debentures (the "Second Round Trust Pool Debentures") or the Guarantees issued in connection with the Second Round Trust Pool Securities; (iii) no cash dividends Restricted Subsidiaries, as set forth below, may be paid on the Second Round Trust Pool Securities so long as a Default or Event of Default under this Agreement has occurred and is continuing; and (iv) the terms and conditions of the Second Round Trust Pool Securities are otherwise satisfactory to the Majority of the Lenders, provided that the aggregate indebtedness in respect of the Second Round Trust Pool Debentures does not exceed US $15,464,000."
(b) deleting the period found at the end of sub-section 1.01(84)(xviii) and replacing such period with a semi-colon, by adding the word "and" immediately following the semi-colon and by adding Incur the following as sub-section 1.01(84)(xix):
(xix) Indebtedness of the Borrowers in connection with the issuance, pursuant to up to four transactions, of preferred securities to one or more pooling vehicles by any one of up to four statutory trusts (the "Fourth Round Trust Pool Securities"); provided thatIndebtedness:
(i) there shall be no cash redemption (A) Indebtedness Incurred pursuant to the Debt Facilities and (B) the Incurrence by a Receivables Entity of Indebtedness in a Qualified Receivables Transaction that is nonrecourse to the Borrower or any of its Subsidiaries (except for Standard Securitization Undertakings) in an aggregate principal amount outstanding at any one time for Indebtedness Incurred under clauses (A) and (B) not to exceed the Fourth Round Trust Pool Securities without greater of (x) $2,250,000,000, less the prior written consent aggregate amount of all permanent repayments of principal actually made under the Majority ABL Credit Facility since the Effective Date with Net Available Cash from Asset Dispositions pursuant to clause (a)(iii)(A) of Section 6.04 and (y) the LendersBorrowing Base;
(ii) Indebtedness of the Borrower owing to and held by any Restricted Subsidiary or Indebtedness of a Default Restricted Subsidiary owing to and held by the Borrower or an Event of Default under this Agreement any Restricted Subsidiary; provided, however,
(A) if the Borrower is not a default or event of default in respect the obligor of such Indebtedness and acceleration a Subsidiary Guarantor is not the obligee, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations;
(B) if a Subsidiary Guarantor is the obligor on such Indebtedness and the Borrower or a Subsidiary Guarantor is not the obligee, such Indebtedness is subordinated in right of payment to the Subsidiary Guarantees of such Subsidiary Guarantor; and
(C) (x) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Indebtedness ceasing to be held by the Borrower or a Restricted Subsidiary of the Outstanding Obligations does not result in an acceleration Borrower and (y) any sale or other transfer of any such Indebtedness to a Person other than the Borrower or a Restricted Subsidiary of the obligations under Borrower, shall be deemed, in each case, to constitute an Incurrence of such Indebtedness by the debentures issued in connection with Borrower or such Subsidiary, as the Fourth Round Trust Pool Securities case may be that was not permitted by this clause (the "Fourth Round Trust Pool Debentures"ii), or any Guarantees issued in connection with the Fourth Round Trust Pool Debentures;.
(iii) no cash dividends may be paid any Indebtedness (other than the Indebtedness described in clauses (i), (ii), (iv), (v) or (vi) of this clause (b)) outstanding (A) on the Fourth Round Trust Pool Securities so long as a Default Effective Date, including the Senior Notes due 2017, the Senior Notes due 2018, the Senior Notes due 2021 and the Senior Notes due 2022 then in existence or Event (B) in the case of Default under the Prior European Facility, on the Effective Date of the 2009 Term Loan Agreement, and any Guarantees related thereto, and any Refinancing Indebtedness Incurred in respect of any Indebtedness described in this Agreement has occurred and is continuingclause (iii) or paragraph (a) of this Section 6.13;
(iv) the Administrative Agent has received: (A) all material documentation as determined Indebtedness represented by the Agent Subsidiary Guarantees, (B)Guarantees by the Borrower of Indebtedness of Restricted Subsidiaries Incurred in its sole discretion relating accordance with the provisions of the Agreement; provided that in the event such Indebtedness that is being Guaranteed is Subordinated Indebtedness, then the related Guarantee shall be subordinated in right of payment to the Fourth Round Trust Pool DebenturesObligations, (C) Guarantees by Subsidiary Guarantors of Indebtedness of the Fourth Round Trust Pool SecuritiesBorrower or any other Subsidiary Guarantor Incurred in accordance with the provisions of this Agreement; provided that in the event such Indebtedness that is being Guaranteed is Subordinated Indebtedness or Guarantor Subordinated Indebtedness, including, without limitation, all materials filed with any securities commission, containing terms and conditions satisfactory then the related Guarantee shall be subordinated in right of payment to the Agent and Obligations or the Majority of Subsidiary Guarantee, as the Lenders; case may be, and (BD) and executed intercreditor agreement with the holders Guarantees of the Fourth Round Trust Pool Securities and the Fourth Round Trust Pool Debentures or such other evidence of subordination as may be satisfactory Indebtedness Incurred pursuant to the Agent and the Majority of the Lenders in respect of the obligations of the Borrowers, the Guarantor or their Subsidiaries to the holders of the Fourth Round Trust Pool Securities and the Fourth Round Trust Pool Debentures, to provide, among other things, for subordination of the obligations of the Borrowers, the Guarantor and the Subsidiaries in connection with the Fourth Round Trust Pool Securities and the Fourth Round Trust Pool Debentures to the payment in full of the Outstanding Obligationsclause (i) above;
(v) none of the statutory trusts issuing the Fourth Round Trust Pool Debentures shall incur any debts, liabilities or obligations other than reasonable fees and expenses of the trustees under the Fourth Round Trust Pool Debentures (acting solely in its capacity as trustee and not in their individual capacity), and the principal, premium (if any) and interest Indebtedness in respect of performance, surety or appeal bonds provided in the Fourth Round Trust Pool Securitiesordinary course of business;
(vi) Indebtedness under Hedging Obligations; provided, however, that such Hedging Obligations are entered into for bona fide hedging purposes of the aggregate indebtedness Borrower or any Restricted Subsidiary in the ordinary course of business;
(vii) Indebtedness (in addition to Indebtedness described in clauses (i) and (iii)) of the Borrower or any Restricted Subsidiary attributable to Capitalized Lease Obligations, or Incurred to finance the acquisition, construction or improvement of fixed or capital assets, or constituting Attributable Debt in respect of Sale/Leaseback Transactions, in an aggregate principal amount at any time outstanding, since the Fourth Round Trust Pool Debentures does Effective Date, together with any Refinancing Indebtedness with respect to any such Indebtedness Incurred under this clause (vii), not to exceed US the greater of (x) $65,000,000 100,000,000 and (y) 1.5% of Total Assets;
(viii) Indebtedness of a Restricted Subsidiary issued and outstanding on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or any Restricted Subsidiary (other than Indebtedness Incurred (A) as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or a Restricted Subsidiary or (B) otherwise in connection with, or in contemplation of, such acquisition) and any Refinancing Indebtedness with respect thereto; provided, however, that on the date of any such acquisition of a Restricted Subsidiary and after giving effect to such acquisition and the Incurrence of such Indebtedness pursuant to this clause (viii), either (A) the Borrower shall have been able to Incur at least an additional $1.00 of Indebtedness under paragraph (a) above, or (B) the Consolidated Coverage Ratio for the Borrower and its Restricted Subsidiaries shall be equal to or greater than immediately prior to such acquisition;
(ix) Indebtedness of Foreign Subsidiaries in an aggregate principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause (ix) since the Effective Date and then outstanding, together with any Refinancing Indebtedness with respect to any such Indebtedness Incurred under this clause (ix), will not in the aggregateaggregate exceed the greater of (x) $450,000,000 and (y) the Foreign Borrowing Base;
(x) Indebtedness in respect of any bankers' acceptance, without bank guarantees, letters of credit, warehouse receipt or similar facilities, and reimbursement obligations related thereto, entered into in the prior written consent ordinary course of business;
(xi) Indebtedness arising from agreements of the Majority Borrower or its Restricted Subsidiaries providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; provided, however, that the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including non-cash proceeds (the fair market value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Borrower and its Restricted Subsidiaries in connection with such disposition;
(xii) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within five Business Days of its incurrence;
(xiii) Indebtedness of the LendersBorrower or any of its Restricted Subsidiaries consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, incurred in the ordinary course of business;
(xiv) Indebtedness incurred by the Borrower or any Restricted Subsidiary to the extent that the net proceeds thereof are promptly deposited or to satisfy and discharge the Obligations;
(xv) Indebtedness of the Borrower or any Restricted Subsidiary supported by a letter of credit or bank guarantee issued pursuant to any Debt Facility that is permitted to be Incurred under this Section 6.13, so long as such letter of credit has not been terminated, in a principal amount not in excess of the stated amount of such letter of credit or bank guarantee;
(xvi) Indebtedness of the Borrower or any Restricted Subsidiary Incurred in connection with cash management and related activities with respect to any Subsidiary or joint venture in the ordinary course of business;
(xvii) cash management obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements, overdraft protections and similar arrangements in each case in connection with deposit accounts; and
(viixviii) Indebtedness (in addition to Indebtedness described in clauses (i)-(xvii)) in an aggregate principal amount outstanding at any one time which, when taken together with the terms principal amount of all other Indebtedness Incurred pursuant to this clause (xviii) since the Effective Date and conditions then outstanding, together with any Refinancing Indebtedness with respect to any such Indebtedness Incurred under this clause (xviii), shall not exceed the greater of each (A) $150,000,000 or (B) 2.0% of the Fourth Round Trust Pool Securities are otherwise satisfactory to the Majority of the LendersTotal Assets."
Appears in 1 contract
Additional Permitted Indebtedness. Section 1.01(84) of Notwithstanding the Credit Agreement is hereby amended by:
foregoing paragraph (a) deleting sub-section 1.10(84)(xv) in its entirety ), the Borrower and replacing it with the following: "Indebtedness in connection with the issuance of preferred securities by a statutory trust to a pooling vehicle sponsored by Sandler X'Xxxxx & Partners L.P. (the "Second Round Trust Pool Securities") provided that (i) there shall be no cash redemption of the Second Round Trust Pool Securities without the prior written consent of the Majority of the Lenders; (ii) a Default or an Event of Default under this Agreement is not a default or event of default in respect of such indebtedness and acceleration of the Outstanding Obligations does not result in an acceleration of the obligations under the debentures (the "Second Round Trust Pool Debentures") or the Guarantees issued in connection with the Second Round Trust Pool Securities; (iii) no cash dividends Restricted Subsidiaries, as set forth below, may be paid on the Second Round Trust Pool Securities so long as a Default or Event of Default under this Agreement has occurred and is continuing; and (iv) the terms and conditions of the Second Round Trust Pool Securities are otherwise satisfactory to the Majority of the Lenders, provided that the aggregate indebtedness in respect of the Second Round Trust Pool Debentures does not exceed US $15,464,000."
(b) deleting the period found at the end of sub-section 1.01(84)(xviii) and replacing such period with a semi-colon, by adding the word "and" immediately following the semi-colon and by adding Incur the following as sub-section 1.01(84)(xix):
(xix) Indebtedness of the Borrowers in connection with the issuance, pursuant to up to four transactions, of preferred securities to one or more pooling vehicles by any one of up to four statutory trusts (the "Fourth Round Trust Pool Securities"); provided thatIndebtedness:
(i) there shall be no cash redemption (A) Indebtedness Incurred pursuant to the Debt Facilities and (B) the Incurrence by a Receivables Entity of Indebtedness in a Qualified Receivables Transaction that is nonrecourse to the Borrower or any of its Subsidiaries (except for Standard Securitization Undertakings) in an aggregate principal amount for Indebtedness Incurred under clauses (A) and (B) not to exceed the Fourth Round Trust Pool Securities without greater of (x) $2,375,000,000, less the prior written consent aggregate amount of all repayments of principal actually made under the Majority ABL Credit Facility since the Effective Date with Net Available Cash from Asset Dispositions pursuant to clause (c)(iii)(A) of Section 6.04 and all repayments of principal under Indebtedness actually made since the Lenders;Effective Date with Net Available Cash from Asset Dispositions of Collateral pursuant to Collateral Disposition Offers and (y) the Borrowing Base; TERM LOAN AGREEMENT, Page 67
(ii) Indebtedness of the Borrower owing to and held by any Wholly Owned Subsidiary or Indebtedness of a Default Restricted Subsidiary owing to and held by the Borrower or an Event of Default under this Agreement any Wholly Owned Subsidiary; provided, however,
(A) if the Borrower is the obligor on such Indebtedness, such Indebtedness and a Subsidiary Guarantor is not the obligee, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations;
(B) if a default Subsidiary Guarantor is the obligor on such Indebtedness and the Borrower or a Subsidiary Guarantor is not the obligee, such Indebtedness is subordinated in right of payment to the Subsidiary Guarantees of such Subsidiary Guarantor; and
(C) (x) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Indebtedness ceasing to be held by the Borrower or a Wholly Owned Subsidiary of default the Borrower and (y) any sale or other transfer of any such Indebtedness to a Person other than the Borrower or a Wholly Owned Subsidiary of the Borrower, shall be deemed, in respect each case, to constitute an Incurrence of such Indebtedness and acceleration of by the Outstanding Obligations does not result in an acceleration of Borrower or such Subsidiary, as the obligations under the debentures issued in connection with the Fourth Round Trust Pool Securities (the "Fourth Round Trust Pool Debentures"), or any Guarantees issued in connection with the Fourth Round Trust Pool Debentures;case may be.
(iii) no cash dividends may be paid any Indebtedness (other than the Indebtedness described in clauses (i), (ii) (iv), (v), (vi) or (viii) of this clause (b)) outstanding on the Fourth Round Trust Pool Securities so long as a Default Effective Date, including the Convertible Notes, the Senior Secured Notes, the Senior Notes due 2009, the Senior Notes due 2011, the Senior Notes due 2013 and the Senior Notes due 2017 then in existence, and any Guarantees related thereto, and any Refinancing Indebtedness Incurred in respect of any Indebtedness described in this clause (iii) or Event paragraph (a) of Default under this Agreement has occurred and is continuingSection 6.13;
(iv) Guarantees by (x) the Administrative Agent has received: (A) all material documentation as determined Borrower or Subsidiary Guarantors of Indebtedness Incurred by the Agent Borrower or a Subsidiary Guarantor in its sole discretion relating accordance with the provisions of the Agreement, provided that in the event such Indebtedness that is being Guaranteed is a Subordinated Indebtedness or a Guarantor Subordinated Indebtedness, then the related Guarantee shall be subordinated in right of payment to the Fourth Round Trust Pool DebenturesObligations or the Subsidiary Guarantee, as the Fourth Round Trust Pool Securitiescase may be, including, without limitation, all materials filed with any securities commission, containing terms and conditions satisfactory to the Agent and the Majority of the Lenders; and (By) the Borrower (solely with respect to Indebtedness of Foreign Subsidiaries) and executed intercreditor agreement Non-Guarantor Restricted Subsidiaries of Indebtedness Incurred by Non-Guarantor Restricted Subsidiaries in accordance with the holders provisions of the Fourth Round Trust Pool Securities and the Fourth Round Trust Pool Debentures or such other evidence of subordination as may be satisfactory to the Agent and the Majority of the Lenders in respect of the obligations of the Borrowers, the Guarantor or their Subsidiaries to the holders of the Fourth Round Trust Pool Securities and the Fourth Round Trust Pool Debentures, to provide, among other things, for subordination of the obligations of the Borrowers, the Guarantor and the Subsidiaries in connection with the Fourth Round Trust Pool Securities and the Fourth Round Trust Pool Debentures to the payment in full of the Outstanding Obligationsthis Agreement;
(v) none of the statutory trusts issuing the Fourth Round Trust Pool Debentures shall incur any debts, liabilities or obligations other than reasonable fees and expenses of the trustees under the Fourth Round Trust Pool Debentures (acting solely in its capacity as trustee and not in their individual capacity), and the principal, premium (if any) and interest in respect of the Fourth Round Trust Pool Securities;
(vi) the aggregate indebtedness in respect of the Fourth Round Trust Pool Debentures does not exceed US $65,000,000 in the aggregate, without the prior written consent of the Majority of the Lenders; and
(vii) the terms and conditions of each of the Fourth Round Trust Pool Securities are otherwise satisfactory to the Majority of the Lenders."
Appears in 1 contract
Additional Permitted Indebtedness. Section 1.01(84) of Notwithstanding the Credit Agreement is hereby amended by:
foregoing paragraph (a) deleting sub-section 1.10(84)(xv) in its entirety ), the Borrower and replacing it with the following: "Indebtedness in connection with the issuance of preferred securities by a statutory trust to a pooling vehicle sponsored by Sandler X'Xxxxx & Partners L.P. (the "Second Round Trust Pool Securities") provided that (i) there shall be no cash redemption of the Second Round Trust Pool Securities without the prior written consent of the Majority of the Lenders; (ii) a Default or an Event of Default under this Agreement is not a default or event of default in respect of such indebtedness and acceleration of the Outstanding Obligations does not result in an acceleration of the obligations under the debentures (the "Second Round Trust Pool Debentures") or the Guarantees issued in connection with the Second Round Trust Pool Securities; (iii) no cash dividends Restricted Subsidiaries, as set forth below, may be paid on the Second Round Trust Pool Securities so long as a Default or Event of Default under this Agreement has occurred and is continuing; and (iv) the terms and conditions of the Second Round Trust Pool Securities are otherwise satisfactory to the Majority of the Lenders, provided that the aggregate indebtedness in respect of the Second Round Trust Pool Debentures does not exceed US $15,464,000."
(b) deleting the period found at the end of sub-section 1.01(84)(xviii) and replacing such period with a semi-colon, by adding the word "and" immediately following the semi-colon and by adding Incur the following as sub-section 1.01(84)(xix):
(xix) Indebtedness of the Borrowers in connection with the issuance, pursuant to up to four transactions, of preferred securities to one or more pooling vehicles by any one of up to four statutory trusts (the "Fourth Round Trust Pool Securities"); provided thatIndebtedness:
(i) there shall be no cash redemption (A) Indebtedness Incurred pursuant to the Debt Facilities and (B) the Incurrence by a Receivables Entity of Indebtedness in a Qualified Receivables Transaction that is nonrecourse to the Borrower or any of its Subsidiaries (except for Standard Securitization Undertakings) in an aggregate principal amount for Indebtedness Incurred under clauses (A) and (B) not to exceed the Fourth Round Trust Pool Securities without greater of (x) $2,250,000,000, less the prior written consent aggregate amount of all repayments of principal actually made under the ABL Credit Facility since the Effective Date of the Majority Existing Term Loan Agreement with Net Available Cash from Asset Dispositions pursuant to clause (a)(iii)(A) of Section 6.04 and (y) the LendersBorrowing Base;
(ii) Indebtedness of the Borrower owing to and held by any Wholly-Owned Subsidiary or Indebtedness of a Default Restricted Subsidiary owing to and held by the Borrower or an Event of Default under this Agreement any Wholly-Owned Subsidiary; provided, however,
(A) if the Borrower is not a default or event of default in respect the obligor of such Indebtedness and acceleration a Subsidiary Guarantor is not the obligee, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations;
(B) if a Subsidiary Guarantor is the obligor on such Indebtedness and the Borrower or a Subsidiary Guarantor is not the obligee, such Indebtedness is subordinated in right of payment to the Subsidiary Guarantees of such Subsidiary Guarantor; and
(C) (x) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Indebtedness ceasing to be held by the Borrower or a Wholly-Owned Subsidiary of the Outstanding Obligations does not result in an acceleration Borrower and (y) any sale or other transfer of any such Indebtedness to a Person other than the Borrower or a Wholly-Owned Subsidiary of the obligations under Borrower, shall be deemed, in each case, to constitute an Incurrence of such Indebtedness by the debentures issued in connection with Borrower or such Subsidiary, as the Fourth Round Trust Pool Securities case may be that was not permitted by this clause (the "Fourth Round Trust Pool Debentures"ii), or any Guarantees issued in connection with the Fourth Round Trust Pool Debentures;.
(iii) no cash dividends may be paid any Indebtedness (other than the Indebtedness described in clauses (i), (ii), (iv), (v), (vi) or (viii) of this clause (b)) outstanding (A) on the Fourth Round Trust Pool Securities so long as a Default Effective Date, including the Convertible Notes, the Senior Notes due 2013, the Senior Notes due 2017 and the Senior Notes due 2022 then in existence or Event (B) in the case of Default under the Prior European Facility, on the Effective Date of the Existing Term Loan Agreement, and any Guarantees related thereto, and any Refinancing Indebtedness Incurred in respect of any Indebtedness described in this Agreement has occurred and is continuingclause (iii) or paragraph (a) of this Section 6.13;
(iv) the Administrative Agent has received: (A) all material documentation as determined Indebtedness represented by the Agent in its sole discretion relating to the Fourth Round Trust Pool DebenturesSubsidiary Guarantees, the Fourth Round Trust Pool Securities, including, without limitation, all materials filed with any securities commission, containing terms and conditions satisfactory to the Agent and the Majority of the Lenders; and (B) and executed intercreditor agreement Guarantees by the Borrower of Indebtedness of Restricted Subsidiaries Incurred in accordance with the holders provisions of the Fourth Round Trust Pool Securities and Agreement; provided that in the Fourth Round Trust Pool Debentures or event such other evidence Indebtedness that is being Guaranteed is Subordinated Indebtedness, then the related Guarantee shall be subordinated in right of subordination as may be satisfactory payment to the Agent and the Majority Obligations, (C) Guarantees by Subsidiary Guarantors of Indebtedness of the Lenders Borrower or any other Subsidiary Guarantor Incurred in respect accordance with the provisions of this Agreement; provided that in the obligations event such Indebtedness that is being Guaranteed is Subordinated Indebtedness or Guarantor Subordinated Indebtedness, then the related Guarantee shall be subordinated in right of the Borrowers, the Guarantor or their Subsidiaries payment to the holders Obligations or the Subsidiary Guarantee, as the case may be, and (D) Guarantees of the Fourth Round Trust Pool Securities and the Fourth Round Trust Pool Debentures, Indebtedness Incurred pursuant to provide, among other things, for subordination of the obligations of the Borrowers, the Guarantor and the Subsidiaries in connection with the Fourth Round Trust Pool Securities and the Fourth Round Trust Pool Debentures to the payment in full of the Outstanding Obligationsclause (i) above;
(v) none of the statutory trusts issuing the Fourth Round Trust Pool Debentures shall incur any debts, liabilities or obligations other than reasonable fees and expenses of the trustees under the Fourth Round Trust Pool Debentures (acting solely in its capacity as trustee and not in their individual capacity), and the principal, premium (if any) and interest Indebtedness in respect of performance, surety or appeal bonds provided in the Fourth Round Trust Pool Securitiesordinary course of business;
(vi) Indebtedness under Hedging Obligations; provided, however, that such Hedging Obligations are entered into for bona fide hedging purposes of the aggregate indebtedness Borrower or any Restricted Subsidiary in the ordinary course of business;
(vii) Indebtedness (in addition to Indebtedness described in clauses (i) and (iii)) of the Borrower or any Restricted Subsidiary attributable to Capitalized Lease Obligations, or Incurred to finance the acquisition, construction or improvement of fixed or capital assets, or constituting Attributable Debt in respect of Sale/Leaseback Transactions, in an aggregate principal amount at any time outstanding, since the Fourth Round Trust Pool Debentures does Effective Date of the Existing Term Loan Agreement, together with any Refinancing Indebtedness with respect to any such Indebtedness Incurred under this clause (vii), not to exceed US the greater of (x) $65,000,000 100,000,000 and (y) 1.5% of Total Assets;
(viii) Indebtedness of a Restricted Subsidiary issued and outstanding on or prior to the date on which such Restricted Subsidiary was acquired by the Borrower or any Restricted Subsidiary (other than Indebtedness Incurred (A) as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Borrower or a Restricted Subsidiary or (B) otherwise in connection with, or in contemplation of, such acquisition) and any Refinancing Indebtedness with respect thereto; provided, however, that on the date of any such acquisition of a Restricted Subsidiary and after giving effect to such acquisition and the Incurrence of such Indebtedness pursuant to this clause (viii), either (A) the Borrower shall have been able to Incur at least an additional $1.00 of Indebtedness under paragraph (a) above, or (B) the Consolidated Coverage Ratio for the Borrower and its Restricted Subsidiaries shall be equal to or greater than immediately prior to such acquisition;
(ix) Indebtedness of Foreign Subsidiaries in an aggregate principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause (ix) since the Effective Date of the Existing Term Loan Agreement and then outstanding, together with any Refinancing Indebtedness with respect to any such Indebtedness Incurred under this clause (ix), will not in the aggregate, without aggregate exceed the prior written consent greater of (x) $400,000,000 and (y) the Majority of the LendersForeign Borrowing Base; and
(viix) Indebtedness (in addition to Indebtedness described in clauses (i)-(ix)) in an aggregate principal amount which, when taken together with the terms and conditions principal amount of each all other Indebtedness Incurred pursuant to this clause (x) since the Effective Date of the Fourth Round Trust Pool Securities are otherwise satisfactory Existing Term Loan Agreement and then outstanding, together with any Refinancing Indebtedness with respect to any such Indebtedness Incurred under this clause (x), shall not exceed the Majority greater of the Lenders(A) $150,000,000 or (B) 2.0% of Total Assets."
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