Secured Debt Create or suffer to exist, or permit any of its Restricted Subsidiaries to create or suffer to exist, any Debt secured by a Lien on (i) any Principal Property, (ii) any shares of stock of a Restricted Subsidiary or (iii) any Debt of any Restricted Subsidiary unless the Company or such Restricted Subsidiary secures or causes such Restricted Subsidiary to secure the Advances and all other amounts payable under this Agreement and the Notes equally and ratably with such secured Debt, so long as such secured Debt shall be so secured, unless after giving effect thereto the aggregate amount of all such Debt so secured does not exceed 15% of Consolidated Net Tangible Assets at such time, provided that the foregoing restriction does not apply to Debt secured by:
(i) Liens existing prior to the date hereof;
(ii) Liens on property of, or on shares of stock of or Debt of, any corporation existing at the time such corporation becomes a Restricted Subsidiary;
(iii) Liens in favor of the Company or any Restricted Subsidiary;
(iv) Liens in favor of any governmental bodies to secure progress or advance payments;
(v) Liens on property, shares of stock or Debt existing at the time of acquisition thereof (including acquisition through merger or consolidation) or to secure the payment of all or any part of the purchase price thereof or construction thereon or to secure any Debt incurred prior to, at the time of, or within 120 days after the later of the acquisition, the completion of construction, or the commencement of full operation of such property or within 120 days after the acquisition of such shares or Debt for the purpose of financing all or any part of the purchase price thereof or construction thereon; and
(vi) any extension, renewal or refunding referred to in the foregoing clauses (i) to (v)
Additional Indebtedness This Indenture does not restrict the Corporation from incurring additional indebtedness for borrowed money or other obligations or liabilities (including Senior Indebtedness) or mortgaging, pledging or charging its properties to secure any indebtedness or obligations or liabilities.
Secured Indebtedness The Borrower shall not permit the ratio of (i) Secured Indebtedness of the Borrower and its Subsidiaries to (ii) Total Asset Value to be greater than 0.40 to 1.00 at any time.
Permitted Debt Create, incur, guarantee or suffer to exist any Debt, except the following (collectively, "Permitted Debt"):
(a) the Obligations;
(b) Subordinated Debt, together with unsecured Debt permitted under Section 10.2.1(i), up to $10,000,000 in the aggregate at any time;
(c) Permitted Purchase Money Debt;
(d) existing Borrowed Money not satisfied with the initial Loan proceeds and set forth on Schedule 10.2.1;
(e) [Reserved];
(f) Debt that is in existence when a Person becomes a Subsidiary or that is secured by an asset when acquired by an Obligor or Subsidiary, as long as such Debt was not incurred in contemplation of such Person becoming a Subsidiary or such acquisition, and does not exceed $2,500,000 in the aggregate at any time;
(g) Permitted Contingent Obligations;
(h) Refinancing Debt as long as each Refinancing Condition is satisfied;
(i) unsecured Debt, together with Subordinated Debt permitted under Section 10.2.1(b), up to $10,000,000 in the aggregate at any time;
(j) intercompany Debt permitted under Section 10.2.5(a);
(k) Debt of any Excluded Subsidiary, in an aggregate outstanding amount, for all Excluded Subsidiaries, not to exceed $5,000,000 at any time;
(l) Revolving Loan Obligations (including those arising from Bank Products) long as such Revolving Loan Obligations do not exceed the Maximum ABL Principal Obligations (as defined in the Intercreditor Agreement);
(m) Debt under performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or with respect to workers' compensation claims, in each case incurred in the Ordinary Course of Business, and unsecured reimbursement obligations in respect of any of the foregoing;
(n) to the extent constituting Debt, unsecured obligations in respect of purchase price adjustments, earn-outs, non-competition agreements, and other similar arrangements, or other deferred payments of a similar nature, representing consideration for a Permitted Acquisition and incurred in connection with any Permitted Acquisition, not to exceed $500,000 in the aggregate, so long as such unsecured Debt is on terms and conditions reasonably satisfactory to Agent;
(o) customer advances or deposits received for goods and services purchased in the Ordinary Course of Business;
(p) Indebtedness representing installment insurance premiums (for insurance not to exceed 1 year) owing in the Ordinary Course of Business; and
(q) Other Debt up to $1,000,000 in the aggregate at any time.
Permitted Indebtedness Neither the Company nor any Subsidiary ---------------------- will create, incur or assume any Indebtedness other than:
(a) Indebtedness represented by or incurred under the Notes and the Purchase Agreement and the Revolving Credit Facility;
(b) Indebtedness incurred to prepay or repay in full the remaining outstanding principal amount of Notes and all other amounts due thereon or under the Purchase Agreement;
(c) Indebtedness existing on the Closing Date and identified on the Disclosure Schedule;
(d) Indebtedness incurred solely as an extension, renewal, refinancing or replacement of Indebtedness of the Company or of its Subsidiaries under clause (iii) above (but excluding any Indebtedness under clause (iii) above to the extent such Indebtedness is repaid with the proceeds from the sale of the Notes and Warrants), provided that any such extension, renewal or refinancing (A) shall be on terms which on balance are substantially as favorable to the Company (or the relevant Subsidiary) as the terms of such existing Indebtedness (other than changes in the amount of the interest rate and other than the imposition of additional Liens permitted by Section 9.10(f) hereof) and (B) shall not be in a greater principal amount or have a shorter average life or earlier maturity than such existing Indebtedness;
(e) Indebtedness in an aggregate principal amount outstanding not exceeding $20,000,000 incurred solely to finance the purchase price of additional towers and related facilities and equipment;
(f) Interest Rate Protection Agreements required by the Revolving Credit Facility or incurred for hedging purposes in the ordinary course of business; and
(g) Additional Indebtedness in an amount which , together with sale and leaseback obligations permitted under Section 9.11, does not exceed $2,000,000.
Additional Negative Pledges Customer will not, directly or indirectly, create or otherwise cause or permit to exist or become effective any contractual obligation which may restrict or inhibit IBM Credit's rights or ability to sell or otherwise dispose of the Collateral or any part thereof after the occurrence and during the continuance of an Event of Default.
Indebtedness Create, incur, assume, or be liable for any Indebtedness, or permit any Subsidiary to do so, other than Permitted Indebtedness.
Total Indebtedness Create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan Documents;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bonds;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below);
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vi) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties of any Indebtedness permitted under this subsection 8.2.3;
(viii) Indebtedness in respect of Intercompany Loans;
(ix) unsecured Derivative Obligations incurred in the ordinary course of business in respect of the Loans hereunder;
(x) [intentionally omitted];
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;
(xii) Indebtedness not included in paragraphs (i) through (xi) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000.
Funded Debt 4 GAAP........................................................................................................4
Negative Pledge (i) The Issuer will not, nor will it permit any Restricted Subsidiary to, issue, assume or guarantee any indebtedness for borrowed money secured by a mortgage, pledge, lien or other encumbrance of any nature (mortgages, pledges, liens and other encumbrances being hereinafter called “mortgage” or “mortgages”) upon any property of the Issuer or any Restricted Subsidiary, or upon any shares of stock of any Restricted Subsidiary, without in any such case effectively providing, concurrently with the issuance, assumption or guarantee of any such indebtedness for borrowed money, that the Notes (together with, if the Issuer shall so determine, any other indebtedness of the Issuer or such Restricted Subsidiary ranking equally with the Notes then existing or thereafter created) shall be secured equally and ratably with such indebtedness for borrowed money; provided, however, that the foregoing restrictions shall not apply to:
(1) mortgages existing on 1 August, 2006;
(2) mortgages to secure the payment of all or part of the purchase price of such property (other than property acquired for lease to a Person other than the Issuer or a Restricted Subsidiary) upon the acquisition of such property by the Issuer or a Restricted Subsidiary or to secure any indebtedness for borrowed money incurred or guaranteed by the Issuer or a Restricted Subsidiary prior to, at the time of, or within 60 days after the later of the acquisition, completion of construction or commencement of full operation of such property, which indebtedness for borrowed money is incurred or guaranteed for the purpose of financing all or any part of the purchase price thereof or construction thereof or improvements thereon; provided, however, that in the case of any such acquisition, construction or improvement, the mortgage shall not apply to any property theretofore owned by the Issuer or a Restricted Subsidiary, other than, in the case of any such construction or improvement, any theretofore unimproved real property on which the property so constructed, or the improvement, is located;
(3) mortgages on the property of a Restricted Subsidiary on the date it became a Restricted Subsidiary;
(4) mortgages securing indebtedness for borrowed money of a Restricted Subsidiary owing to the Issuer or to another Restricted Subsidiary;
(5) mortgages on property of a corporation existing at the time such corporation is merged into or consolidated with the Issuer or a Restricted Subsidiary or at the time of a purchase, lease or other acquisition of the properties of a corporation or firm as an entirety or substantially as an entirety by the Issuer or a Restricted Subsidiary;
(6) any replacement or successive replacement in whole or in part of any mortgage referred to in the foregoing clauses (1) to (5), inclusive; provided, however, that the principal amount of the indebtedness for borrowed money secured by the mortgage shall not be increased and the principal repayment schedule and maturity of such indebtedness shall not be extended and (i) such replacement shall be limited to all or a part of the property which secured the mortgage so replaced (plus improvements and construction on such property), or (ii) if the property which secured the mortgage so replaced has been destroyed, condemned or damaged and pursuant to the terms of the mortgage other property has been substituted therefor, then such replacement shall be limited to all or part of such substituted property; or
(7) liens created by or resulting from any litigation or other proceeding which is being contested in good faith by appropriate proceedings, including liens arising out of judgments or awards against the Issuer or any Restricted Subsidiary with respect to which the Issuer or such Restricted Subsidiary is in good faith prosecuting an appeal or proceedings for review; or liens incurred by the Issuer or any Restricted Subsidiary for the purpose of obtaining a stay or discharge in the course of any litigation or other proceeding to which the Issuer or such Restricted Subsidiary is a party; or
(8) liens for taxes or assessments or governmental charges or levies not yet due or delinquent, or which can thereafter be paid without penalty, or which are being contested in good faith by appropriate proceedings; landlord’s liens on property held under lease; and any other liens or charges incidental to the conduct of the business of the Issuer or any Restricted Subsidiary or the ownership of the property and assets of any of them which were not incurred in connection with the borrowing of money or the obtaining of advances or credit and which do not, in the opinion of the Issuer, materially impair the use of such property in the operation of the business of the Issuer or such Restricted Subsidiary or the value of such property for the purposes of such business.
(ii) Notwithstanding the foregoing provisions of this Condition 3(c), the Issuer and any one or more Restricted Subsidiaries may issue, assume or guarantee indebtedness for borrowed money secured by mortgages which would otherwise be subject to the foregoing restrictions in an aggregate amount which, together with all the other outstanding indebtedness for borrowed money of the Issuer and its Restricted Subsidiaries secured by mortgages which is not listed in clauses (1) through (8) of subsection (i) of this Condition 3(c), does not at the time exceed 12 1/2 per cent. of the Consolidated Net Tangible Assets as determined by reference to the audited consolidated financial statements of the Issuer as of the end of the fiscal year preceding the date of determination.
(iii) For the purposes of this Condition 3(c) only, “Consolidated Net Tangible Assets” means the total amount of assets (less depreciation and valuation reserves and other reserves and items deductible from the gross book value of specific asset amounts under generally accepted accounting principles in the United States) which under generally accepted accounting principles in the United States would be included on a balance sheet of the Issuer and its Restricted Subsidiaries, after deducting therefrom (i) all liability items except indebtedness (whether incurred, assumed or guaranteed) for borrowed money maturing by its terms more than one year from the date of creation thereof or which is extendible or renewable at the sole option of the obligor in such manner that it may become payable more than one year from the date of creation thereof, shareholders’ equity and reserves for deferred income taxes, (ii) all goodwill, trade names, trademarks, patents, unamortised debt discount and expense and other like intangibles, which in each case would be so included on such balance sheet, and (iii) amounts invested in, or equity in the net assets of, Non-Restricted Subsidiaries.
