Limitation on Debt. (a) The Issuer may not, and may not permit any Issuer Restricted Subsidiary to, directly or indirectly, Incur any Debt; provided, however, that (i) the Issuer or (ii) any Issuer Restricted Subsidiary that is a Guarantor and a Loan Proceeds Note Guarantor may incur any Debt if, after giving pro forma effect to such Incurrence and the receipt and application of the net proceeds thereof, no Default or Event of Default would occur as a consequence of such Incurrence or be continuing following such Incurrence and the Issuer Debt Ratio would be less than 5.75 to 1.0. (b) Notwithstanding the foregoing limitation, the Issuer or any Issuer Restricted Subsidiary may Incur any and all of the following (each of which shall be given independent effect): (i) Debt of the Issuer or any Issuer Restricted Subsidiary under the Securities issued on the Issue Date, any Note Guarantee in respect of the Securities issued on the Issue Date, the Loan Proceeds Note amended and restated in connection with the Securities issued on the Issue Date or any Loan Proceeds Note Guarantee in respect of the Loan Proceeds Note; (ii) Debt of the Issuer or any Issuer Restricted Subsidiary under Credit Facilities in an aggregate principal amount outstanding or available (together with the amount of (x) outstanding Securities issued on the Issue Date and (y) all refinancing Debt outstanding or available pursuant to clause (vi) below in respect of the Securities issued on the Issue Date and Debt previously Incurred pursuant to this clause (ii) (other than any Additional Refinancing Amount)) at any one time not to exceed the greater of (x) $5.011 billion and (y) 4.0 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available; (iii) Debt of the Issuer or any Issuer Restricted Subsidiary outstanding on the Measurement Date; (iv) Debt owed by (A) the Issuer to any Issuer Restricted Subsidiary, (B) any Issuer Restricted Subsidiary to the Issuer or any other Issuer Restricted Subsidiary, provided that in each case of clause (A) and (B), (x) upon the transfer, conveyance or other disposition by such Issuer Restricted Subsidiary or the Issuer of any Debt so permitted to a Person other than the Issuer or another Issuer Restricted Subsidiary or (y) if for any reason such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, the provisions of clause (A) or clause (B), as applicable, shall no longer be applicable to such Debt and such Debt shall be deemed to have been Incurred by the issuer thereof at the time of such transfer, conveyance or other disposition or when such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, (C) the Issuer or any Issuer Restricted Subsidiary to Level 3 Parent in an aggregate principal amount, in the case of this clause (C), not in excess of the greater of (x) $300,000,000 and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available at any time outstanding; provided, however, that Level 3 Parent is a Guarantor; or (D) the Issuer or any Issuer Restricted Subsidiary to any member of the CenturyLink Credit Group in an aggregate principal amount, in the case of this clause (D), not in excess of the greater of (x) $300,000,000 and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under this Indenture are available at any time outstanding; provided that, in the case of clauses (C) and (D) above, with respect to any such Debt of the Issuer, any Guarantor that is an Issuer Restricted Subsidiary or any Loan Proceeds Note Guarantor that is an Issuer Restricted Subsidiary, the payment obligation with respect to such Debt is expressly subordinated in any bankruptcy, liquidation or winding up proceeding of the obligor to the prior payment in full in cash of all obligations with respect to the Securities or the Loan Proceeds Note Guarantee of such Loan Proceeds Note Guarantor, respectively; (v) Debt Incurred by a Person prior to the time (A) such Person became an Issuer Restricted Subsidiary, (B) such Person merges into or consolidates with an Issuer Restricted Subsidiary or (C) an Issuer Restricted Subsidiary merges into or consolidates with such Person (in a transaction in which such Person becomes an Issuer Restricted Subsidiary), and Debt Incurred to finance any such transaction; provided, however, that after giving effect to the Incurrence of any Debt pursuant to this clause (v), either (1) the Issuer could Incur at least $1.00 of additional Debt pursuant to paragraph (a) of this Section 908 computed using “6.0 to 1.0” rather than “5.75 to 1.0” as it appears therein or (2) the ratio computed pursuant to paragraph (a) of this Section 908 would be no higher than before giving effect to the Incurrence of such Debt; (vi) Debt of the Issuer or any Issuer Restricted Subsidiary Incurred to renew, extend, refinance, defease, repay, prepay, repurchase, redeem, retire, exchange or refund (each, a “refinancing”) Debt of the Issuer or any Issuer Restricted Subsidiary Incurred pursuant to paragraph (a) of this Xxxxxxx 000 xx xxxxxx (x), (xx), (xxx), (x), (xx), (x) or (xi) of this paragraph (b) or this clause (vi), in an aggregate principal amount (or if issued at a discount, the then-Accreted Value) not to exceed the aggregate principal amount (or if issued at a discount, the then-Accreted Value) of and accrued interest on the Debt so refinanced plus any Additional Refinancing Amount; provided, however, that (A) if the Person that originally Incurred the Debt to be refinanced became, or would have been required to become if not already, a Guarantor or a Loan Proceeds Note Guarantor as a result of the Incurrence of the Debt being refinanced in accordance with this covenant, (1) the Person that Incurs the refinancing Debt pursuant to this clause (vi) (if not the Issuer) shall be a Guarantor or a Loan Proceeds Note Guarantor, as applicable, and (2) if the Debt to be refinanced is subordinated to the Loan Proceeds Note Guarantee of such Loan Proceeds Note Guarantor, the refinancing Debt shall be subordinated to the same extent to the Loan Proceeds Note Guarantee of the Loan Proceeds Note Guarantor Incurring such refinancing Debt, (B) the refinancing Debt of the Issuer or any Guarantor shall not be senior in right of payment to the Debt that is being refinanced and (C) in the case of any refinancing of Debt Incurred pursuant to paragraph (a) of this Section 908 or clause (i), (v), (ix), (x) or (xi) or, if such Debt previously refinanced Debt Incurred pursuant to any such clause, this clause (vi), the refinancing Debt by its terms, or by the terms of any agreement or instrument pursuant to which such Debt is issued, (x) does not provide for payments of principal of such Debt at stated maturity or by way of a sinking fund applicable thereto or by way of any mandatory redemption, defeasance, retirement or repurchase thereof by the Issuer or any Issuer Restricted Subsidiary (including any redemption, retirement or repurchase which is contingent upon events or circumstances, but excluding any retirement required by virtue of the acceleration of any payment with respect to such Debt upon any event of default thereunder), in each case prior to earlier of the time the same are required by the terms of the Debt being refinanced and the maturity date of the Securities and (y) does not permit redemption or other retirement (including pursuant to an offer to purchase made by the Issuer or an Issuer Restricted Subsidiary) of such Debt at the option of the holder thereof prior to the earlier of the time the same are required by the terms of the Debt being refinanced and the maturity date of the Securities, other than, in the case of clause (x) or (y), (1) any such payment, redemption or other retirement (including pursuant to an offer to purchase made by the Issuer) which is conditioned upon a change of control or upon an asset sale and (2) any Debt in an aggregate principal amount not in excess of the Maturity Limitation Excluded Amount; (vii) Debt of the Issuer or any Issuer Restricted Subsidiary (A) in respect of performance, surety or appeal bonds, Guarantees, letters of credit or reimbursement obligations Incurred or provided in the ordinary course of business securing the performance of contractual, franchise, lease, self-insurance or license obligations and not in connection with the Incurrence of Debt, (B) in respect of customary agreements providing for indemnification, adjustment of purchase price after closing, or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any such obligations of the Issuer or any Issuer Restricted Subsidiary pursuant to such agreements, Incurred in connection with the disposition of any business, assets or Issuer Restricted Subsidiary (other than Guarantees of Debt Incurred by any Person acquiring all or any portion of such business, assets or Issuer Restricted Subsidiary for the purpose of financing such acquisition) and in an aggregate principal amount not to exceed the gross proceeds actually received by the Issuer or any Issuer Restricted Subsidiary in connection with such disposition, (C) consisting of the financing of insurance premiums in the ordinary course of business, (D) consisting of take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business or (E) 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; provided that such Debt is extinguished promptly upon the Issuer or such Issuer Restricted Subsidiary’s obtaining knowledge of its occurrence; (viii) Debt of the Issuer or any Issuer Restricted Subsidiary consisting of Permitted Hedging Agreements; (1) Debt of any Foreign Restricted Subsidiary that is an Issuer Restricted Subsidiary or (2) Debt incurred on behalf of, or representing Guarantees of Debt of, Joint Ventures of the Issuer or any Issuer Restricted Subsidiary, not otherwise permitted to be Incurred pursuant to paragraph (a) of this Section 908 or clauses (i) through (viii) above or clause (x) below, which, together with any other outstanding Debt Incurred pursuant to this clause (ix) and the amount of all refinancing Debt outstanding or available pursuant to clause (vi) above in respect of Debt previously Incurred pursuant to this clause (ix) (other than any Additional Refinancing Amount), has an aggregate principal amount not to exceed the greater of (A) $300,000,000 and (B) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available; (a) Issue Date Purchase Money Debt initially Incurred by the Issuer or any Issuer Restricted Subsidiary or another Person that became an Issuer Restricted Subsidiary on or before the Issue Date and (b) additional Purchase Money Debt Incurred by the Issuer or any Issuer Restricted Subsidiary; provided that, in the case of this clause (b), the amount of such Purchase Money Debt (together with the amount of all refinancing Debt outstanding or available pursuant to clause (vi) above in respect of such Purchase Money Debt (other than any Additional Refinancing Amount)) does not exceed 100% of the cost of the construction, installation, acquisition, lease, development or improvement of the applicable assets acquired; and (xi) Debt under the Existing Notes issued prior to the Issue Date. (c) Notwithstanding any other provision of this Section 908, (A) the maximum amount of Debt the Issuer or any Issuer Restricted Subsidiary may Incur pursuant to this Section 908 shall not be deemed to be exceeded due solely to the result of fluctuations in the exchange rates of currencies and (B) accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Debt in the form of additional Debt with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock shall not be deemed to be an incurrence of Debt for purposes of this covenant. (d) For purposes of determining any particular amount of Debt under this Section 908, (1) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (2) any Liens granted for the benefit of the Securities pursuant to the provisions of Section 910 shall not be treated as Debt. For purposes of determining compliance with this Section 908, (1) any Debt outstanding under the Existing Issuer Credit Facility will be treated as Incurred on the Issue Date pursuant to clause (ii) of paragraph (b) of this Section 908 and (2) in the event that an item of Debt meets the criteria of more than one of the types of Debt described in the above clauses, the Issuer, in its sole discretion, may divide and classify (and, subject to clause (1) above, may later reclassify) such item of Debt and only be required to include the amount and type of such Debt in one of such clauses. When classifying multiple Incurrences of Debt on the same day, the Issuer may, in its sole discretion, specify the order of Incurrence of such Debt and need only give pro forma effect to the specified Incurrence (and any prior Incurrence) for purposes of classifying such specified Incurrence.
Appears in 2 contracts
Samples: Indenture (Level 3 Parent, LLC), Indenture (Level 3 Parent, LLC)
Limitation on Debt. (a) The Issuer may Guarantor shall not, and may shall not permit the Issuer or any Issuer Restricted Subsidiary Group Member to, directly or indirectly, Incur create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Debt (including Acquired Debt); provided, however, that (i) the Issuer or (ii) any Issuer Restricted Subsidiary that is a Guarantor and a Loan Proceeds Note Guarantor Existing Notes Obligor may incur any Debt ifif at the time of such incurrence, the Fixed Charge Coverage Ratio for Luxco 2's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the incurrence of such Debt, taken as one period, would be greater than 2.25 to 1.00, determined on a pro forma basis after giving pro forma effect to the incurrence of such Incurrence Debt and the receipt and application of the net proceeds thereof, no Default or Event of Default would occur as a consequence of such Incurrence or be continuing following such Incurrence and the Issuer Debt Ratio would be less than 5.75 to 1.0therefrom.
(b) Notwithstanding The foregoing paragraph shall not, however, prohibit the foregoing limitation, the Issuer or incurrence of any Issuer Restricted Subsidiary may Incur any and all of the following items of Debt (each of which shall be given independent effectcollectively “Permitted Debt”):
(i) the incurrence by any Existing Notes Obligor under Credit Facilities of:
(A) Debt represented by the Super Senior Secured Notes (other than any additional notes) and any related Guarantees and an unlimited principal amount of the Issuer or PIK interest (including any Issuer Restricted Subsidiary under the Securities PIK notes issued on the Issue Date, any Note Guarantee in respect of the Securities issued PIK interest) in payment of accrued interest on the Issue Date, Super Senior Secured Notes; and
(B) Debt under the Loan Proceeds Note amended Surety Bonds Facilities and restated in connection with the Securities issued on the Issue Date or any Loan Proceeds Note Guarantee obligations in respect of letters of credit in an aggregate principal amount at any one time outstanding not to exceed €50.0 million;
(C) Debt represented by the Loan Proceeds NoteSenior Secured Notes (other than any additional notes) and any related Guarantees and an unlimited principal amount of PIK interest (including any PIK notes issued in respect of PIK interest) in payment of accrued interest on the Senior Secured Notes;
(ii) Debt of represented by the Issuer or Notes (other than any Issuer Restricted Subsidiary under Credit Facilities in Additional Notes) and any related Guarantees and an aggregate unlimited principal amount outstanding or available of PIK Interest (together with the amount of (x) outstanding Securities including any PIK Notes issued on the Issue Date and (y) all refinancing Debt outstanding or available pursuant to clause (vi) below in respect of the Securities issued PIK Interest) in payment of accrued interest on the Notes;
(iii) the incurrence since the Existing Debt Issue Date by any Restricted Group Member of Debt, and any Permitted Refinancing Debt previously Incurred of any Restricted Group Member incurred to renew, refund, refinance, replace, defease or discharge any Debt incurred pursuant to this clause (ii) (other than any Additional Refinancing Amount)) at any one time not to exceed the greater of (x) $5.011 billion and (y) 4.0 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available;
(iii) Debt of the Issuer or any Issuer Restricted Subsidiary outstanding on the Measurement Date;
(iv) Debt owed by (A) the Issuer to any Issuer Restricted Subsidiary, (B) any Issuer Restricted Subsidiary to the Issuer or any other Issuer Restricted Subsidiary, provided that in each case of clause (A) and (B), (x) upon the transfer, conveyance or other disposition by such Issuer Restricted Subsidiary or the Issuer of any Debt so permitted to a Person other than the Issuer or another Issuer Restricted Subsidiary or (y) if for any reason such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, the provisions of clause (A) or clause (B), as applicable, shall no longer be applicable to such Debt and such Debt shall be deemed to have been Incurred by the issuer thereof at the time of such transfer, conveyance or other disposition or when such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, (C) the Issuer or any Issuer Restricted Subsidiary to Level 3 Parent in an aggregate principal amount, in the case of this clause (C), not in excess of the greater of (x) $300,000,000 and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available at any time outstanding; provided, however, that Level 3 Parent is a Guarantor; or (D) the Issuer or any Issuer Restricted Subsidiary to any member of the CenturyLink Credit Group in an aggregate principal amount, in the case of this clause (D), not in excess of the greater of (x) $300,000,000 and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under this Indenture are available at any time outstanding; provided that, in the case of clauses (C) and (D) above, with respect to any such Debt of the Issuer, any Guarantor that is an Issuer Restricted Subsidiary or any Loan Proceeds Note Guarantor that is an Issuer Restricted Subsidiary, the payment obligation with respect to such Debt is expressly subordinated in any bankruptcy, liquidation or winding up proceeding of the obligor to the prior payment in full in cash of all obligations with respect to the Securities or the Loan Proceeds Note Guarantee of such Loan Proceeds Note Guarantor, respectively;
(v) Debt Incurred by a Person prior to the time (A) such Person became an Issuer Restricted Subsidiary, (B) such Person merges into or consolidates with an Issuer Restricted Subsidiary or (C) an Issuer Restricted Subsidiary merges into or consolidates with such Person (in a transaction in which such Person becomes an Issuer Restricted Subsidiary), and Debt Incurred to finance any such transaction; provided, however, that after giving effect to the Incurrence of any Debt pursuant to this clause (v), either (1) the Issuer could Incur at least $1.00 of additional Debt pursuant to paragraph (a) of this Section 908 computed using “6.0 to 1.0” rather than “5.75 to 1.0” as it appears therein or (2) the ratio computed pursuant to paragraph (a) of this Section 908 would be no higher than before giving effect to the Incurrence of such Debt;
(vi) Debt of the Issuer or any Issuer Restricted Subsidiary Incurred to renew, extend, refinance, defease, repay, prepay, repurchase, redeem, retire, exchange or refund (each, a “refinancing”) Debt of the Issuer or any Issuer Restricted Subsidiary Incurred pursuant to paragraph (a) of this Xxxxxxx 000 xx xxxxxx (x), (xx), (xxx), (x), (xx), (x) or (xi) of this paragraph (b) or this clause (vi), in an aggregate principal amount (or if issued at a discount, the then-Accreted Value) any time outstanding not to exceed €150.0 million; provided that the aggregate principal amount (or if issued at a discount, the then-Accreted Value) of and accrued interest on the Debt so refinanced plus any Additional Refinancing Amount; provided, however, that (A) if the Person that originally Incurred the Debt to may be refinanced became, or would have been required to become if not already, a Guarantor or a Loan Proceeds Note Guarantor as a result of the Incurrence of the Debt being refinanced in accordance with this covenant, (1) the Person that Incurs the refinancing Debt incurred pursuant to this clause (vi) (if not the Issuer) shall be a Guarantor or a Loan Proceeds Note Guarantor, as applicable, and (2) if the Debt to be refinanced is subordinated to the Loan Proceeds Note Guarantee of such Loan Proceeds Note Guarantor, the refinancing Debt shall be subordinated to the same extent to the Loan Proceeds Note Guarantee of the Loan Proceeds Note Guarantor Incurring such refinancing Debt, (B) the refinancing Debt of the Issuer or any Guarantor shall not be senior in right of payment to the Debt that is being refinanced and (C) in the case of any refinancing of Debt Incurred pursuant to paragraph (a) of this Section 908 or clause (i), (v), (ix), (x) or (xi) or, if such Debt previously refinanced Debt Incurred pursuant to any such clause, this clause (vi), the refinancing Debt by its terms, or by the terms of any agreement or instrument pursuant to which such Debt is issued, (x) does not provide for payments of principal of such Debt at stated maturity or by way of a sinking fund applicable thereto or by way of any mandatory redemption, defeasance, retirement or repurchase thereof by the Issuer or any Issuer Restricted Subsidiary (including any redemption, retirement or repurchase which is contingent upon events or circumstances, but excluding any retirement required by virtue of the acceleration of any payment with respect to such Debt upon any event of default thereunder), in each case prior to earlier of the time the same are required by the terms of the Debt being refinanced and the maturity date of the Securities and (y) does not permit redemption or other retirement (including pursuant to an offer to purchase made by the Issuer or an Issuer Restricted Subsidiary) of such Debt at the option of the holder thereof prior to the earlier of the time the same are required by the terms of the Debt being refinanced and the maturity date of the Securities, other than, in the case of clause (x) or (y), (1) any such payment, redemption or other retirement (including pursuant to an offer to purchase made by the Issuer) which is conditioned upon a change of control or upon an asset sale and (2) any Debt in an aggregate principal amount not in excess of the Maturity Limitation Excluded Amount;
(vii) Debt of the Issuer or any Issuer Restricted Subsidiary (A) in respect of performance, surety or appeal bonds, Guarantees, letters of credit or reimbursement obligations Incurred or provided in the ordinary course of business securing the performance of contractual, franchise, lease, self-insurance or license obligations and not in connection with the Incurrence of Debt, (B) in respect of customary agreements providing for indemnification, adjustment of purchase price after closing, or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any such obligations of the Issuer or any Issuer Restricted Subsidiary pursuant to such agreements, Incurred in connection with the disposition of any business, assets or Issuer Restricted Subsidiary (other than Guarantees of Debt Incurred by any Person acquiring all or any portion of such business, assets or Issuer Restricted Subsidiary for the purpose of financing such acquisition) and in an aggregate principal amount not to exceed the gross proceeds actually received by the Issuer or any Issuer Restricted Subsidiary in connection with such disposition, (C) consisting of the financing of insurance premiums in the ordinary course of business, (D) consisting of take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business or (E) 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; provided that such Debt is extinguished promptly upon the Issuer or such Issuer Restricted Subsidiary’s obtaining knowledge of its occurrence;
(viii) Debt of the Issuer or any Issuer Restricted Subsidiary consisting of Permitted Hedging Agreements;
(1) Debt of any Foreign Restricted Subsidiary that is an Issuer Restricted Subsidiary or (2) Debt incurred on behalf of, or representing Guarantees of Debt of, Joint Ventures of the Issuer or any Issuer Restricted Subsidiary, not otherwise permitted to be Incurred pursuant to paragraph (a) of this Section 908 or clauses (i) through (viii) above or clause (x) below, which, together with any other outstanding Debt Incurred pursuant to this clause (ix) and the amount of all refinancing Debt outstanding or available pursuant to clause (vi) above in respect of Debt previously Incurred pursuant to this clause (ix) (other than any Additional Refinancing Amount), has an aggregate principal amount not to exceed the greater of (A) $300,000,000 and (B) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available;
(a) Issue Date Purchase Money Debt initially Incurred by the Issuer or any Issuer Restricted Subsidiary or another Person that became an Issuer Restricted Subsidiary on or before the Issue Date and (b) additional Purchase Money Debt Incurred by the Issuer or any Issuer Restricted Subsidiary; provided that, in the case of this clause (b), the amount of such Purchase Money Debt (together with the amount of all refinancing Debt outstanding or available pursuant to clause (vi) above in respect of such Purchase Money Debt (other than any Additional Refinancing Amount)) does not exceed 100% of the cost of the construction, installation, acquisition, lease, development or improvement of the applicable assets acquired; and
(xi) Debt under the Existing Notes issued prior to the Issue Date.
(c) Notwithstanding any other provision of this Section 908, (A) the maximum amount of Debt the Issuer or any Issuer Restricted Subsidiary may Incur pursuant to this Section 908 shall not be deemed to be exceeded due solely to the result of fluctuations in the exchange rates of currencies and (B) accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Debt in the form of additional Debt with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock shall not be deemed to be an incurrence of Debt for purposes of this covenant.
(d) For purposes of determining any particular amount of Debt under this Section 908, (1) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (2) any Liens granted for the benefit of the Securities pursuant to the provisions of Section 910 shall not be treated as Debt. For purposes of determining compliance with this Section 908, (1) any Debt outstanding under the Existing Issuer Credit Facility will be treated as Incurred on the Issue Date pursuant to clause (ii) of paragraph (b) of this Section 908 and (2) in the event that an item of Debt meets the criteria of more than one of the types of Debt described in the above clauses, the Issuer, in its sole discretion, may divide and classify (and, subject to clause (1) above, may later reclassify) such item of Debt and only be required to include the amount and type of such Debt in one of such clauses. When classifying multiple Incurrences of Debt on the same day, the Issuer may, in its sole discretion, specify the order of Incurrence of such Debt and need only give pro forma effect to the specified Incurrence (and any prior Incurrence) for purposes of classifying such specified Incurrence.
Appears in 2 contracts
Limitation on Debt. The Borrower will not, and will not permit any of its Subsidiaries to, incur or at any time be liable with respect to any Debt except:
(a) The Issuer may not, and may not permit any Issuer Restricted Subsidiary to, directly or indirectly, Incur any Debt; provided, however, that (i) the Issuer or (ii) any Issuer Restricted Subsidiary that is a Guarantor and a Loan Proceeds Note Guarantor may incur any Debt if, after giving pro forma effect to such Incurrence and the receipt and application of the net proceeds thereof, no Default or Event of Default would occur as a consequence of such Incurrence or be continuing following such Incurrence and the Issuer Debt Ratio would be less than 5.75 to 1.0.under this Agreement;
(b) Notwithstanding Debt of a Person (x) secured by Liens permitted by Section 5.09(b) or (y) existing at the foregoing limitationtime such Person is merged or consolidated with or into the Borrower or a Subsidiary, or at the Issuer time such Person becomes a Subsidiary or at the time such asset is acquired, so long as the principal amount of Debt under this clause (y) does not exceed $30,000,000 at any Issuer Restricted Subsidiary may Incur any time outstanding and all was not incurred in contemplation of the following (each of which shall be given independent effect):such merger, consolidation or asset acquisition;
(ic) Debt of the Issuer Borrower owed to a Guarantor, or any Issuer Restricted Subsidiary under Debt of a Guarantor owed to the Securities issued on the Issue Date, any Note Guarantee in respect of the Securities issued on the Issue Date, the Loan Proceeds Note amended and restated in connection with the Securities issued on the Issue Date Borrower or any Loan Proceeds Note Guarantee in respect of the Loan Proceeds Noteanother Guarantor;
(iid) Debt of the Issuer or Borrower, which may be guaranteed by any Issuer Restricted Subsidiary under Credit Facilities in an aggregate principal amount outstanding or available (together with the amount of (x) outstanding Securities issued Guarantor on the Issue Date and (y) all refinancing Debt outstanding or available pursuant to clause (vi) below in respect of the Securities issued on the Issue Date and Debt previously Incurred pursuant to this clause (ii) (other than any Additional Refinancing Amount)) at any one time not to exceed the greater of (x) $5.011 billion and (y) 4.0 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available;
(iii) Debt of the Issuer or any Issuer Restricted Subsidiary outstanding on the Measurement Date;
(iv) Debt owed by (A) the Issuer to any Issuer Restricted Subsidiary, (B) any Issuer Restricted Subsidiary a senior subordinated basis to the Issuer or any other Issuer Restricted Subsidiary, provided that in each case of clause (A) and (B), (x) upon the transfer, conveyance or other disposition by such Issuer Restricted Subsidiary or the Issuer of any Debt so permitted to a Person other than the Issuer or another Issuer Restricted Subsidiary or (y) if for any reason such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, the provisions of clause (A) or clause (B), as applicable, shall no longer be applicable to such Debt and such Debt shall be deemed to have been Incurred by the issuer thereof at the time of such transfer, conveyance or other disposition or when such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, (C) the Issuer or any Issuer Restricted Subsidiary to Level 3 Parent in an aggregate principal amount, in the case of this clause (C), not in excess of the greater of (x) $300,000,000 and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available at any time outstanding; provided, however, that Level 3 Parent is a Guarantor; or (D) the Issuer or any Issuer Restricted Subsidiary to any member of the CenturyLink Credit Group in an aggregate principal amount, in the case of this clause (D), not in excess of the greater of (x) $300,000,000 and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under this Indenture are available at any time outstanding; provided that, in the case of clauses (C) and (D) above, with respect to any such Debt of the Issuer, any Guarantor that is an Issuer Restricted Subsidiary or any Loan Proceeds Note Guarantor that is an Issuer Restricted Subsidiary, the payment obligation with respect to such Debt is expressly subordinated in any bankruptcy, liquidation or winding up proceeding of the obligor to the prior payment in full in cash of all obligations with respect to the Securities or the Loan Proceeds Note Guarantee of such Loan Proceeds Note Guarantor, respectively;
(v) Debt Incurred by a Person prior to the time (A) such Person became an Issuer Restricted Subsidiary, (B) such Person merges into or consolidates with an Issuer Restricted Subsidiary or (C) an Issuer Restricted Subsidiary merges into or consolidates with such Person (in a transaction in which such Person becomes an Issuer Restricted Subsidiary), and Debt Incurred to finance any such transaction; provided, however, that after giving effect to the Incurrence of any Debt pursuant to this clause (v), either (1) the Issuer could Incur at least $1.00 of additional Debt pursuant to paragraph (a) of this Section 908 computed using “6.0 to 1.0” rather than “5.75 to 1.0” as it appears therein or (2) the ratio computed pursuant to paragraph (a) of this Section 908 would be no higher than before giving effect to the Incurrence of such Debt;
(vi) Debt of the Issuer or any Issuer Restricted Subsidiary Incurred to renew, extend, refinance, defease, repay, prepay, repurchase, redeem, retire, exchange or refund (each, a “refinancing”) Debt of the Issuer or any Issuer Restricted Subsidiary Incurred pursuant to paragraph (a) of this Xxxxxxx 000 xx xxxxxx (x), (xx), (xxx), (x), (xx), (x) or (xi) of this paragraph (b) or this clause (vi), in an aggregate principal amount (or if issued at a discount, the then-Accreted Value) not to exceed the aggregate principal amount (or if issued at a discount, the then-Accreted Value) of and accrued interest on the Debt so refinanced plus any Additional Refinancing Amount; provided, however, that (A) if the Person that originally Incurred the Debt to be refinanced became, or would have been required to become if not already, a Guarantor or a Loan Proceeds Note Guarantor as a result of the Incurrence of the Debt being refinanced in accordance with this covenant, (1) the Person that Incurs the refinancing Debt pursuant to this clause (vi) (if not the Issuer) shall be a Guarantor or a Loan Proceeds Note Guarantor, as applicable, and (2) if the Debt to be refinanced is subordinated to the Loan Proceeds Note Guarantee of such Loan Proceeds Note Guarantor, the refinancing Debt shall be subordinated to the same extent to the Loan Proceeds Note Guarantee of the Loan Proceeds Note Guarantor Incurring such refinancing Debt, (B) the refinancing Debt of the Issuer or any Guarantor shall not be senior in right of payment to the Debt that is being refinanced and (C) in the case of any refinancing of Debt Incurred pursuant to paragraph (a) of this Section 908 or clause (i), (v), (ix), (x) or (xi) or, if such Debt previously refinanced Debt Incurred pursuant to any such clause, this clause (vi), the refinancing Debt by its terms, or by the terms of any agreement or instrument pursuant to which such Debt is issued, (x) does not provide for payments of principal of such Debt at stated maturity or by way of a sinking fund applicable thereto or by way of any mandatory redemption, defeasance, retirement or repurchase thereof by the Issuer or any Issuer Restricted Subsidiary (including any redemption, retirement or repurchase which is contingent upon events or circumstances, but excluding any retirement required by virtue of the acceleration of any payment with respect to such Debt upon any event of default thereunder), in each case prior to earlier of the time the same are required by the terms of the Debt being refinanced and the maturity date of the Securities and (y) does not permit redemption or other retirement (including pursuant to an offer to purchase made Existing Senior Subordinated Notes Indenture, evidenced by the Issuer or an Issuer Restricted Subsidiary) of such Debt at the option of the holder thereof prior to the earlier of the time the same are required by the terms of the Debt being refinanced and the maturity date of the Securities, other than, in the case of clause (x) or (y), (1) any such payment, redemption or other retirement (including pursuant to an offer to purchase made by the Issuer) which is conditioned upon a change of control or upon an asset sale and (2) any Debt in an aggregate principal amount not in excess of the Maturity Limitation Excluded Amount;
(vii) Debt of the Issuer or any Issuer Restricted Subsidiary (A) in respect of performance, surety or appeal bonds, Guarantees, letters of credit or reimbursement obligations Incurred or provided in the ordinary course of business securing the performance of contractual, franchise, lease, self-insurance or license obligations and not in connection with the Incurrence of Debt, (B) in respect of customary agreements providing for indemnification, adjustment of purchase price after closing, or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any such obligations of the Issuer or any Issuer Restricted Subsidiary pursuant to such agreements, Incurred in connection with the disposition of any business, assets or Issuer Restricted Subsidiary (other than Guarantees of Debt Incurred by any Person acquiring all or any portion of such business, assets or Issuer Restricted Subsidiary for the purpose of financing such acquisition) and Existing Senior Subordinated Notes in an aggregate principal amount not to exceed $75 million (less the gross proceeds actually received by amount of principal repayments thereof after the Issuer or any Issuer Restricted Subsidiary in connection with such disposition, (C) consisting of the financing of insurance premiums in the ordinary course of business, (D) consisting of take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business or (E) 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; provided that such Debt is extinguished promptly upon the Issuer or such Issuer Restricted Subsidiary’s obtaining knowledge of its occurrenceInitial Borrowing Date);
(viiie) Debt of PST evidenced by the Existing PST Senior Secured Notes, if any, not purchased pursuant to the Existing PST Senior Secured Notes Tender Offer/Consent Solicitation (which in no event shall exceed $62.499 million in aggregate principal amount)(less the amount of principal repayments thereof after the Initial Borrowing Date);
(f) Debt of the Issuer Borrower, which may be guaranteed on a senior subordinated basis by one or more Guarantors to the extent required by the terms of the New Senior Subordinated Notes Indenture or any Issuer Restricted Subsidiary consisting of Permitted Hedging Agreements;
similar indenture described in clause (1ii) Debt of any Foreign Restricted Subsidiary that is an Issuer Restricted Subsidiary or (2) Debt incurred on behalf ofbelow, or representing Guarantees of Debt of, Joint Ventures of the Issuer or any Issuer Restricted Subsidiary, not otherwise permitted to be Incurred pursuant to paragraph (a) of this Section 908 or clauses evidenced by (i) through (viii) above or clause (x) below, which, together with any other outstanding Debt Incurred pursuant to this clause (ix) and the amount of all refinancing Debt outstanding or available pursuant to clause (vi) above New Senior Subordinated Notes in respect of Debt previously Incurred pursuant to this clause (ix) (other than any Additional Refinancing Amount), has an aggregate principal amount not to exceed $200 million (less the greater amount of (Aprincipal repayments thereof after the Initial Borrowing Date) $300,000,000 and (Bii) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges agreements and documents on terms and provisions which are substantially identical to or more favorable to the Lenders (in the reasonable judgment of the Issuer and Agent) to those set forth in the Issuer Restricted Subsidiaries for New Senior Subordinated Notes Documents in an amount not to exceed $100 million (less the four full fiscal quarters immediately preceding amount of principal repayments thereof after the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are availabledate on incurrence thereof);
(ag) Issue Debt of a Foreign Subsidiary in an aggregate amount not to exceed $25,000,000;
(h) Debt of the Borrower and its Subsidiaries not otherwise permitted by this Section incurred after the Initial Borrowing Date Purchase Money Debt initially Incurred by the Issuer or in an aggregate principal amount at any Issuer Restricted Subsidiary or another Person that became an Issuer Restricted Subsidiary on or before the Issue Date and (b) additional Purchase Money Debt Incurred by the Issuer or any Issuer Restricted Subsidiarytime outstanding not to exceed $15,000,000; provided that, in that the case aggregate principal amount of Debt incurred by all Subsidiaries pursuant to this clause (b), the amount of such Purchase Money Debt (together with the amount of all refinancing Debt outstanding or available pursuant to clause (vih) above in respect of such Purchase Money Debt (other than any Additional Refinancing Amount)) does shall not exceed 100% of the cost of the construction, installation, acquisition, lease, development or improvement of the applicable assets acquired; and$7,500,000 at any time outstanding;
(xi) Debt under the Existing Notes issued prior to the Issue Date.
(c) Notwithstanding any other provision of this Section 908, (Ai) the maximum amount of Debt the Issuer Borrower or any Issuer Restricted Subsidiary may Incur pursuant to this Section 908 guaranty Debt and other obligations of its Domestic Subsidiaries or Foreign Subsidiaries (which guaranty shall not be deemed to be exceeded due solely to the result of fluctuations in the exchange rates of currencies and (B) accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Debt in the form of additional Debt with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock shall not be deemed to be an incurrence of Debt for purposes of this covenant.
(d) For purposes of determining any particular amount of Debt under this Section 908, (1) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (2as an Investment in such Domestic Subsidiary or Foreign Subsidiary, as applicable) any Liens granted for the benefit of the Securities pursuant to which are permitted under the provisions of Section 910 shall not be treated as Debt. For purposes of determining compliance with this Section 908, (1) any Debt outstanding under the Existing Issuer Credit Facility will be treated as Incurred on the Issue Date pursuant to clause (ii) of paragraph (b) of this Section 908 and (2) in the event that an item of Debt meets the criteria of more than one of the types of Debt described in the above clauses, the Issuer, in its sole discretion, may divide and classify (Agreement; and, subject to clause (1) above, may later reclassify) such item of Debt and only be required to include the amount and type of such Debt in one of such clauses. When classifying multiple Incurrences of Debt on the same day, the Issuer may, in its sole discretion, specify the order of Incurrence of such Debt and need only give pro forma effect to the specified Incurrence (and any prior Incurrence) for purposes of classifying such specified Incurrence.
Appears in 1 contract
Samples: Credit Agreement (Tekni Plex Inc)
Limitation on Debt. (a) The Issuer may Parent Guarantor shall not, and may shall not permit any Issuer Restricted Subsidiary Group Member to, directly or indirectly, Incur create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Debt (including Acquired Debt); provided, however, that (i) the Issuer or (ii) any Issuer Restricted Subsidiary that is a Parent Guarantor and a Loan Proceeds Note Guarantor any Restricted Group Member may incur any Debt ifif at the time of such incurrence, the Fixed Charge Coverage Ratio for the Parent Guarantor's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the incurrence of such Debt, taken as one period, would be greater than 2.25 to 1.00, determined on a pro forma basis after giving pro forma effect to the incurrence of such Incurrence Debt and the receipt and application of the net proceeds thereof, no Default or Event of Default would occur as a consequence therefrom; provided that after giving effect to the incurrence of such Incurrence or be continuing following such Incurrence Debt and the application of the net proceeds therefrom, on a pro forma basis, the aggregate amount of Debt (including Acquired Debt that may be incurred pursuant to this paragraph by Restricted Group Members that are not the Issuer Debt Ratio would be less than 5.75 to 1.0or a Subsidiary Guarantor shall not exceed the greater of €50.0 million and 3.25% of Consolidated Total Assets, at any one time outstanding.
(b) Notwithstanding The foregoing paragraph shall not, however, prohibit the foregoing limitation, the Issuer or incurrence of any Issuer Restricted Subsidiary may Incur any and all of the following items of Debt (each of which shall be given independent effectcollectively “Permitted Debt”):
(i) Debt of the Issuer incurrence by the Parent Guarantor or any Issuer Restricted Subsidiary under Group Member (other than the Securities issued on the Issue Date, any Note Guarantee in respect Issuer) of the Securities issued on the Issue Date, the Loan Proceeds Note amended and restated in connection with the Securities issued on the Issue Date or any Loan Proceeds Note Guarantee in respect of the Loan Proceeds Note;
(ii) Debt of the Issuer or any Issuer Restricted Subsidiary under Credit Facilities and Surety Bond Facilities in an aggregate principal amount outstanding or available (together with the amount of (x) outstanding Securities issued on the Issue Date and (y) all refinancing Debt outstanding or available pursuant to clause (vi) below in respect of the Securities issued on the Issue Date and Debt previously Incurred pursuant to this clause (ii) (other than any Additional Refinancing Amount)) at any one time outstanding under this clause (i) not to exceed the greater of €200.0 million;
(xii) $5.011 billion and (y) 4.0 times Pro Forma Consolidated Cash Flow Available for Fixed Charges the incurrence by the Parent Guarantor or any Restricted Group Member of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are availableExisting Debt;
(iii) Debt of the incurrence by (x) the Issuer or any Issuer Restricted Subsidiary outstanding on of Debt represented by the Measurement DateNotes (other than Additional Notes) and (y) the Guarantors of Debt represented by the Guarantees;
(iv) Debt owed the incurrence by (A) the Issuer to any Issuer Restricted Subsidiary, (B) any Issuer Restricted Subsidiary to the Issuer Parent Guarantor or any other Issuer Restricted SubsidiaryGroup Member of Permitted Refinancing Debt in exchange for, provided that in each case of clause (A) and (B), (x) upon the transfer, conveyance or other disposition by such Issuer Restricted Subsidiary or the Issuer net proceeds of any Debt so permitted which are used to a Person other than the Issuer refund, refinance or another Issuer Restricted Subsidiary or (y) if for any reason such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, the provisions of clause (A) or clause (B), as applicable, shall no longer be applicable to such Debt and such Debt shall be deemed to have been Incurred by the issuer thereof at the time of such transfer, conveyance or other disposition or when such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, (C) the Issuer or any Issuer Restricted Subsidiary to Level 3 Parent in an aggregate principal amount, in the case of this clause (C), not in excess of the greater of (x) $300,000,000 and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available at any time outstanding; provided, however, that Level 3 Parent is a Guarantor; or (D) the Issuer or any Issuer Restricted Subsidiary to any member of the CenturyLink Credit Group in an aggregate principal amount, in the case of this clause (D), not in excess of the greater of (x) $300,000,000 and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under this Indenture are available at any time outstanding; provided that, in the case of clauses (C) and (D) above, with respect to any such Debt of the Issuer, any Guarantor that is an Issuer Restricted Subsidiary or any Loan Proceeds Note Guarantor that is an Issuer Restricted Subsidiary, the payment obligation with respect to such Debt is expressly subordinated in any bankruptcy, liquidation or winding up proceeding of the obligor to the prior payment in full in cash of all obligations with respect to the Securities or the Loan Proceeds Note Guarantee of such Loan Proceeds Note Guarantor, respectively;
(v) Debt Incurred by a Person prior to the time (A) such Person became an Issuer Restricted Subsidiary, (B) such Person merges into or consolidates with an Issuer Restricted Subsidiary or (C) an Issuer Restricted Subsidiary merges into or consolidates with such Person (in a transaction in which such Person becomes an Issuer Restricted Subsidiary), and Debt Incurred to finance any such transaction; provided, however, that after giving effect to the Incurrence of any Debt pursuant to this clause (v), either (1) the Issuer could Incur at least $1.00 of additional Debt pursuant to paragraph (a) of this Section 908 computed using “6.0 to 1.0” rather than “5.75 to 1.0” as it appears therein or (2) the ratio computed pursuant to paragraph (a) of this Section 908 would be no higher than before giving effect to the Incurrence of such Debt;
(vi) Debt of the Issuer or any Issuer Restricted Subsidiary Incurred to renew, extend, refinance, defease, repay, prepay, repurchase, redeem, retire, exchange or refund (each, a “refinancing”) Debt of the Issuer or any Issuer Restricted Subsidiary Incurred pursuant to paragraph (a) of this Xxxxxxx 000 xx xxxxxx (x), (xx), (xxx), (x), (xx), (x) or (xi) of this paragraph (b) or this clause (vi), in an aggregate principal amount (or if issued at a discount, the then-Accreted Value) not to exceed the aggregate principal amount (or if issued at a discount, the then-Accreted Value) of and accrued interest on the Debt so refinanced plus any Additional Refinancing Amount; provided, however, that (A) if the Person that originally Incurred the Debt to be refinanced became, or would have been required to become if not already, a Guarantor or a Loan Proceeds Note Guarantor as a result of the Incurrence of the Debt being refinanced in accordance with this covenant, (1) the Person that Incurs the refinancing Debt pursuant to this clause (vi) (if not the Issuer) shall be a Guarantor or a Loan Proceeds Note Guarantor, as applicable, and (2) if the Debt to be refinanced is subordinated to the Loan Proceeds Note Guarantee of such Loan Proceeds Note Guarantor, the refinancing Debt shall be subordinated to the same extent to the Loan Proceeds Note Guarantee of the Loan Proceeds Note Guarantor Incurring such refinancing Debt, (B) the refinancing Debt of the Issuer or any Guarantor shall not be senior in right of payment to the Debt that is being refinanced and (C) in the case of any refinancing of Debt Incurred pursuant to paragraph (a) of this Section 908 or clause (i), (v), (ix), (x) or (xi) or, if such Debt previously refinanced Debt Incurred pursuant to any such clause, this clause (vi), the refinancing Debt by its terms, or by the terms of any agreement or instrument pursuant to which such Debt is issued, (x) does not provide for payments of principal of such Debt at stated maturity or by way of a sinking fund applicable thereto or by way of any mandatory redemption, defeasance, retirement or repurchase thereof by the Issuer or any Issuer Restricted Subsidiary (including any redemption, retirement or repurchase which is contingent upon events or circumstances, but excluding any retirement required by virtue of the acceleration of any payment with respect to such Debt upon any event of default thereunder), in each case prior to earlier of the time the same are required by the terms of the Debt being refinanced and the maturity date of the Securities and (y) does not permit redemption or other retirement (including pursuant to an offer to purchase made by the Issuer or an Issuer Restricted Subsidiary) of such Debt at the option of the holder thereof prior to the earlier of the time the same are required by the terms of the Debt being refinanced and the maturity date of the Securities, other than, in the case of clause (x) or (y), (1) any such payment, redemption or other retirement (including pursuant to an offer to purchase made by the Issuer) which is conditioned upon a change of control or upon an asset sale and (2) any Debt in an aggregate principal amount not in excess of the Maturity Limitation Excluded Amount;
(vii) Debt of the Issuer or any Issuer Restricted Subsidiary (A) in respect of performance, surety or appeal bonds, Guarantees, letters of credit or reimbursement obligations Incurred or provided in the ordinary course of business securing the performance of contractual, franchise, lease, self-insurance or license obligations and not in connection with the Incurrence of Debt, (B) in respect of customary agreements providing for indemnification, adjustment of purchase price after closing, or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any such obligations of the Issuer or any Issuer Restricted Subsidiary pursuant to such agreements, Incurred in connection with the disposition of any business, assets or Issuer Restricted Subsidiary (other than Guarantees of Debt Incurred by any Person acquiring all or any portion of such business, assets or Issuer Restricted Subsidiary for the purpose of financing such acquisition) and in an aggregate principal amount not to exceed the gross proceeds actually received by the Issuer or any Issuer Restricted Subsidiary in connection with such disposition, (C) consisting of the financing of insurance premiums in the ordinary course of business, (D) consisting of take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business or (E) 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; provided that such Debt is extinguished promptly upon the Issuer or such Issuer Restricted Subsidiary’s obtaining knowledge of its occurrence;
(viii) Debt of the Issuer or any Issuer Restricted Subsidiary consisting of Permitted Hedging Agreements;
(1) Debt of any Foreign Restricted Subsidiary that is an Issuer Restricted Subsidiary or (2) Debt incurred on behalf of, or representing Guarantees of Debt of, Joint Ventures of the Issuer or any Issuer Restricted Subsidiary, not otherwise permitted to be Incurred pursuant to paragraph (a) of this Section 908 or clauses (i) through (viii) above or clause (x) below, which, together with any other outstanding Debt Incurred pursuant to this clause (ix) and the amount of all refinancing Debt outstanding or available pursuant to clause (vi) above in respect of Debt previously Incurred pursuant to this clause (ix) (other than any Additional Refinancing Amount), has an aggregate principal amount not to exceed the greater of (A) $300,000,000 and (B) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available;
(a) Issue Date Purchase Money Debt initially Incurred by the Issuer or any Issuer Restricted Subsidiary or another Person that became an Issuer Restricted Subsidiary on or before the Issue Date and (b) additional Purchase Money Debt Incurred by the Issuer or any Issuer Restricted Subsidiary; provided that, in the case of this clause (b), the amount of such Purchase Money Debt (together with the amount of all refinancing Debt outstanding or available pursuant to clause (vi) above in respect of such Purchase Money replace Debt (other than intercompany Debt between the Parent Guarantor and any Additional Refinancing AmountRestricted Group Member or between any Restricted Group Members) that was permitted to be incurred under Section 4.06(a) hereof or clauses (ii)) does not exceed 100% of the cost of the construction, installation, acquisition, lease, development or improvement of the applicable assets acquired; and
(xi) Debt under the Existing Notes issued prior to the Issue Date.
(c) Notwithstanding any other provision of this Section 908, (A) the maximum amount of Debt the Issuer or any Issuer Restricted Subsidiary may Incur pursuant to this Section 908 shall not be deemed to be exceeded due solely to the result of fluctuations in the exchange rates of currencies and (B) accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Debt in the form of additional Debt with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock shall not be deemed to be an incurrence of Debt for purposes of this covenant.
(d) For purposes of determining any particular amount of Debt under this Section 908iii), (1iv) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (2) any Liens granted for the benefit of the Securities pursuant to the provisions of Section 910 shall not be treated as Debt. For purposes of determining compliance with this Section 908, (1) any Debt outstanding under the Existing Issuer Credit Facility will be treated as Incurred on the Issue Date pursuant to clause (ii) of paragraph (bxii) of this Section 908 and (2) in the event that an item of Debt meets the criteria of more than one of the types of Debt described in the above clauses, the Issuer, in its sole discretion, may divide and classify (and, subject to clause (1) above, may later reclassify) such item of Debt and only be required to include the amount and type of such Debt in one of such clauses. When classifying multiple Incurrences of Debt on the same day, the Issuer may, in its sole discretion, specify the order of Incurrence of such Debt and need only give pro forma effect to the specified Incurrence (and any prior Incurrence) for purposes of classifying such specified Incurrence.Section
Appears in 1 contract
Samples: Indenture
Limitation on Debt. (a) The Issuer may not, and may not permit any Issuer Restricted Subsidiary to, directly or indirectly, Incur any Debt; provided, however, that (i) the Issuer or (ii) any Issuer Restricted Subsidiary that is a Guarantor and a Loan an Offering Proceeds Note Guarantor may incur any Debt if, after giving pro forma effect to such Incurrence and the receipt and application of the net proceeds thereof, no Default or Event of Default would occur as a consequence of such Incurrence or be continuing following such Incurrence and the Issuer Debt Ratio would be less than 5.75 to 1.0.
(b) Notwithstanding the foregoing limitation, the Issuer or any Issuer Restricted Subsidiary may Incur any and all of the following (each of which shall be given independent effect):
(i) Debt of the Issuer or any Issuer Restricted Subsidiary under the Securities issued on the Issue Date, any Note Guarantee in respect of the Securities issued on the Issue Date, the Loan any Offering Proceeds Note amended and restated issued in connection with the Securities issued on the Issue Date or any Loan Offering Proceeds Note Guarantee in respect of the Loan Offering Proceeds Note;
(ii) Debt of the Issuer or any Issuer Restricted Subsidiary under Credit Facilities in an aggregate principal amount outstanding or available (together with the amount of (x) outstanding Securities issued on the Issue Date and (y) all refinancing Debt outstanding or available pursuant to clause (vi) below in respect of the Securities issued on the Issue Date and Debt previously Incurred pursuant to this clause (ii) (other than any Additional Refinancing Amount)) at any one time not to exceed the greater of (x) $5.011 billion and (y) 4.0 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available;
(iii) Debt of the Issuer or any Issuer Restricted Subsidiary outstanding on the Measurement Date;
(iv) Debt owed by (A) the Issuer to any Issuer Restricted Subsidiary, (B) any Issuer Restricted Subsidiary to the Issuer or any other Issuer Restricted Subsidiary, provided that in each case of clause (A) and (B), (x) upon the transfer, conveyance or other disposition by such Issuer Restricted Subsidiary or the Issuer of any Debt so permitted to a Person other than the Issuer or another Issuer Restricted Subsidiary or (y) if for any reason such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, the provisions of clause (A) or clause (B), as applicable, shall no longer be applicable to such Debt and such Debt shall be deemed to have been Incurred by the issuer thereof at the time of such transfer, conveyance or other disposition or when such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, (C) the Issuer or any Issuer Restricted Subsidiary to Level 3 Parent in an aggregate principal amount, in the case of this clause (C), not in excess of the greater of (x) $300,000,000 300 million and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available at any time outstanding; provided, however, that Level 3 Parent is a Guarantor; or (D) the Issuer or any Issuer Restricted Subsidiary to any member of the CenturyLink Credit Group in an aggregate principal amount, in the case of this clause (D), not in excess of the greater of (x) $300,000,000 300 million and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under this Indenture are available at any time outstanding; provided that, in the case of clauses (C) and (D) above, with respect to any such Debt of the Issuer, any Guarantor that is an Issuer Restricted Subsidiary or any Loan Offering Proceeds Note Guarantor that is an Issuer Restricted Subsidiary, the payment obligation with respect to such Debt is expressly subordinated in any bankruptcy, liquidation or winding up proceeding of the obligor to the prior payment in full in cash of all obligations with respect to the Securities or the Loan Offering Proceeds Note Guarantee of such Loan Offering Proceeds Note Guarantor, respectively;
(v) Debt Incurred by a Person prior to the time (A) such Person became an Issuer Restricted Subsidiary, (B) such Person merges into or consolidates with an Issuer Restricted Subsidiary or (C) an Issuer Restricted Subsidiary merges into or consolidates with such Person (in a transaction in which such Person becomes an Issuer Restricted Subsidiary), and Debt Incurred to finance any such transaction; provided, however, that after giving effect to the Incurrence of any Debt pursuant to this clause (v), either (1) the Issuer could Incur at least $1.00 of additional Debt pursuant to paragraph (a) of this Section 908 above computed using “6.0 to 1.0” rather than “5.75 to 1.0” as it appears therein or (2) the ratio computed pursuant to paragraph (a) of this Section 908 above would be no higher than before giving effect to the Incurrence of such Debt;
(vi) Debt of the Issuer or any Issuer Restricted Subsidiary Incurred to renew, extend, refinance, defease, repay, prepay, repurchase, redeem, retire, exchange or refund (each, a “refinancing”) Debt of the Issuer or any Issuer Restricted Subsidiary Incurred pursuant to paragraph (a) of this Xxxxxxx 000 xx xxxxxx above or clause (xi), (xxii), (xxxiii), (xv), (xxix), (x) or (xi) of this paragraph (b) or this clause (vi), in an aggregate principal amount (or if issued at a discount, the then-Accreted Value) not to exceed the aggregate principal amount (or if issued at a discount, the then-Accreted Value) of and accrued interest on the Debt so refinanced plus any Additional Refinancing Amount; provided, however, that (A) if the Person that originally Incurred the Debt to be refinanced became, or would have been required to become if not already, a Guarantor or a Loan an Offering Proceeds Note Guarantor as a result of the Incurrence of the Debt being refinanced in accordance with this covenant, (1) the Person that Incurs the refinancing Debt pursuant to this clause (vi) (if not the Issuer) shall be a Guarantor or a Loan an Offering Proceeds Note Guarantor, as applicable, and (2) if the Debt to be refinanced is subordinated to the Loan Offering Proceeds Note Guarantee of such Loan Offering Proceeds Note Guarantor, the refinancing Debt shall be subordinated to the same extent to the Loan Offering Proceeds Note Guarantee of the Loan Offering Proceeds Note Guarantor Incurring such refinancing Debt, (B) the refinancing Debt of the Issuer or any Guarantor shall not be senior in right of payment to the Debt that is being refinanced and (C) in the case of any refinancing of Debt Incurred pursuant to paragraph (a) of this Section 908 above or clause (i), (v), (ix), (x) or (xi) or, if such Debt previously refinanced Debt Incurred pursuant to any such clause, this clause (vi), the refinancing Debt by its terms, or by the terms of any agreement or instrument pursuant to which such Debt is issued, (x) does not provide for payments of principal of such Debt at stated maturity or by way of a sinking fund applicable thereto or by way of any mandatory redemption, defeasance, retirement or repurchase thereof by the Issuer or any Issuer Restricted Subsidiary (including any redemption, retirement or repurchase which is contingent upon events or circumstances, but excluding any retirement required by virtue of the acceleration of any payment with respect to such Debt upon any event of default thereunder), in each case prior to earlier of the time the same are required by the terms of the Debt being refinanced and the maturity date of the Securities and (y) does not permit redemption or other retirement (including pursuant to an offer to purchase made by the Issuer or an Issuer Restricted Subsidiary) of such Debt at the option of the holder thereof prior to the earlier of the time the same are required by the terms of the Debt being refinanced and the maturity date of the Securities, other than, in the case of clause (x) or (y), (1) any such payment, redemption or other retirement (including pursuant to an offer to purchase made by the Issuer) which is conditioned upon a change of control or upon an asset sale and (2) any Debt in an aggregate principal amount not in excess of the Maturity Limitation Excluded Amount;
(vii) Debt of the Issuer or any Issuer Restricted Subsidiary (A) in respect of performance, surety or appeal bonds, Guarantees, letters of credit or reimbursement obligations Incurred or provided in the ordinary course of business securing the performance of contractual, franchise, lease, self-insurance or license obligations and not in connection with the Incurrence of Debt, (B) in respect of customary agreements providing for indemnification, adjustment of purchase price after closing, or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any such obligations of the Issuer or any Issuer Restricted Subsidiary pursuant to such agreements, Incurred in connection with the disposition of any business, assets or Issuer Restricted Subsidiary (other than Guarantees of Debt Incurred by any Person acquiring all or any portion of such business, assets or Issuer Restricted Subsidiary for the purpose of financing such acquisition) and in an aggregate principal amount not to exceed the gross proceeds actually received by the Issuer or any Issuer Restricted Subsidiary in connection with such disposition, (C) consisting of the financing of insurance premiums in the ordinary course of business, (D) consisting of take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business or (E) 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; provided that such Debt is extinguished promptly upon the Issuer or such Issuer Restricted Subsidiary’s obtaining knowledge of its occurrence;
(viii) Debt of the Issuer or any Issuer Restricted Subsidiary consisting of Permitted Hedging Agreements;
(1) Debt of any Foreign Restricted Subsidiary that is an Issuer Restricted Subsidiary or (2) Debt incurred on behalf of, or representing Guarantees of Debt of, Joint Ventures of the Issuer or any Issuer Restricted Subsidiary, not otherwise permitted to be Incurred pursuant to paragraph (a) of this Section 908 above or clauses (i) through (viii) above or clause (x) below, which, together with any other outstanding Debt Incurred pursuant to this clause (ix) and the amount of all refinancing Debt outstanding or available pursuant to clause (vi) above in respect of Debt previously Incurred pursuant to this clause (ix) (other than any Additional Refinancing Amount), has an aggregate principal amount not to exceed the greater of (A) $300,000,000 300 million and (B) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available;
(a) Issue Date Purchase Money Debt initially Incurred by the Issuer or any Issuer Restricted Subsidiary or another Person that became an Issuer Restricted Subsidiary on or before the Issue Date and (b) additional Purchase Money Debt Incurred by the Issuer or any Issuer Restricted Subsidiary; provided that, in the case of this clause (b), the amount of such Purchase Money Debt (together with the amount of all refinancing Debt outstanding or available pursuant to clause (vi) above in respect of such Purchase Money Debt (other than any Additional Refinancing Amount)) does not exceed 100% of the cost of the construction, installation, acquisition, lease, development or improvement of the applicable assets acquired; and
(xi) Debt under the Existing Notes issued on or prior to the Issue Date.
(c) Notwithstanding any other provision of this Section 908, (A) the maximum amount of Debt the Issuer or any Issuer Restricted Subsidiary may Incur pursuant to this Section 908 shall not be deemed to be exceeded due solely to the result of fluctuations in the exchange rates of currencies and (B) accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Debt in the form of additional Debt with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock shall not be deemed to be an incurrence of Debt for purposes of this covenant.
(d) For purposes of determining any particular amount of Debt under this Section 908, (1) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (2) any Liens granted for the benefit of the Securities pursuant to the provisions of Section 910 shall not be treated as Debt. For purposes of determining compliance with this Section 908, (1) any Debt outstanding under the Existing Issuer Credit Facility will be treated as Incurred on the Issue Date pursuant to clause (ii) of paragraph (b) of this Section 908 and (2) in the event that an item of Debt meets the criteria of more than one of the types of Debt described in the above clauses, the Issuer, in its sole discretion, may divide and classify (and, subject to clause (1) above, may later reclassify) such item of Debt and only be required to include the amount and type of such Debt in one of such clauses. When classifying multiple Incurrences of Debt on the same day, the Issuer may, in its sole discretion, specify the order of Incurrence of such Debt and need only give pro forma effect to the specified Incurrence (and any prior Incurrence) for purposes of classifying such specified Incurrence.
Appears in 1 contract
Samples: Indenture (Level 3 Parent, LLC)
Limitation on Debt. (a) The Issuer may Parent Guarantor will not, and may will not permit any Issuer Restricted Subsidiary to, create, issue, incur, assume, guarantee or in any manner become directly or indirectlyindirectly liable with respect to or otherwise become responsible for, Incur contingently or otherwise, the payment of (individually and collectively, to “incur” or, as appropriate, an “incurrence”), any Debt (including any Acquired Debt); providedprovided that the Parent Guarantor, however, that (i) the Issuer or (ii) and any Issuer other Restricted Subsidiary that is a Guarantor and a Loan Proceeds Note Guarantor may will be permitted to incur any Debt (including Acquired Debt) if, after giving pro forma effect to the incurrence of such Incurrence Debt and the receipt and application of the net proceeds thereof, no Default or Event of Default would occur as on a consequence pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Incurrence or be continuing following such Incurrence and the Issuer Debt Ratio Debt, taken as one period, would be less greater than 5.75 2.0 to 1.0.
(b) Notwithstanding Section 4.08(a) will not prohibit the foregoing limitation, the Issuer or incurrence of any Issuer Restricted Subsidiary may Incur any and all of the following (each of which shall be given independent effectcollectively, “Permitted Debt”):
(i) Debt of the incurrence by the Issuer or any Issuer Restricted Subsidiary under and the Securities Guarantors of Debt represented by the Notes and the related Note Guarantees to be issued on the Issue Date, any Note Guarantee in respect of the Securities issued on the Issue Date, the Loan Proceeds Note amended and restated in connection with the Securities issued on the Issue Date or any Loan Proceeds Note Guarantee in respect of the Loan Proceeds Note;
(ii) Debt of the Issuer incurrence by the Parent Guarantor or any Issuer Restricted Subsidiary of Debt under Credit Facilities in an aggregate principal amount outstanding or available (together with the amount of (x) outstanding Securities issued on the Issue Date and (y) all refinancing Debt outstanding or available pursuant including but not limited to clause (vi) below in respect of the Securities issued on the Issue Date and Debt previously Incurred pursuant to this clause (ii) (other than any Additional Refinancing Amount)) at any one time not to exceed the greater of (x) $5.011 billion and (y) 4.0 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available;
(iii) Debt of the Issuer or any Issuer Restricted Subsidiary outstanding on the Measurement Date;
(iv) Debt owed by (A) the Issuer to any Issuer Restricted Subsidiary, (B) any Issuer Restricted Subsidiary to the Issuer or any other Issuer Restricted Subsidiary, provided that in each case of clause (A) and (B), (x) upon the transfer, conveyance or other disposition by such Issuer Restricted Subsidiary or the Issuer of any Debt so permitted to a Person other than the Issuer or another Issuer Restricted Subsidiary or (y) if for any reason such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, the provisions of clause (A) or clause (B), as applicable, shall no longer be applicable to such Debt and such Debt shall be deemed to have been Incurred by the issuer thereof at the time of such transfer, conveyance or other disposition or when such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, (C) the Issuer or any Issuer Restricted Subsidiary to Level 3 Parent in an aggregate principal amount, in the case of this clause (C), not in excess of the greater of (x) $300,000,000 and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available at any time outstanding; provided, however, that Level 3 Parent is a Guarantor; or (D) the Issuer or any Issuer Restricted Subsidiary to any member of the CenturyLink Credit Group in an aggregate principal amount, in the case of this clause (D), not in excess of the greater of (x) $300,000,000 and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under this Indenture are available at any time outstanding; provided that, in the case of clauses (C) and (D) above, with respect to any such Debt of the Issuer, any Guarantor that is an Issuer Restricted Subsidiary or any Loan Proceeds Note Guarantor that is an Issuer Restricted Subsidiary, the payment obligation with respect to such Debt is expressly subordinated in any bankruptcy, liquidation or winding up proceeding of the obligor to the prior payment in full in cash of all obligations with respect to the Securities or the Loan Proceeds Note Guarantee of such Loan Proceeds Note Guarantor, respectively;
(v) Debt Incurred by a Person prior to the time (A) such Person became an Issuer Restricted Subsidiary, (B) such Person merges into or consolidates with an Issuer Restricted Subsidiary or (C) an Issuer Restricted Subsidiary merges into or consolidates with such Person (in a transaction in which such Person becomes an Issuer Restricted Subsidiary), and Debt Incurred to finance any such transaction; provided, however, that after giving effect to the Incurrence of any Debt pursuant to this clause (v), either (1) the Issuer could Incur at least $1.00 of additional Debt pursuant to paragraph (a) of this Section 908 computed using “6.0 to 1.0” rather than “5.75 to 1.0” as it appears therein or (2) the ratio computed pursuant to paragraph (a) of this Section 908 would be no higher than before giving effect to the Incurrence of such Debt;
(vi) Debt of the Issuer or any Issuer Restricted Subsidiary Incurred to renew, extend, refinance, defease, repay, prepay, repurchase, redeem, retire, exchange or refund (each, a “refinancing”) Debt of the Issuer or any Issuer Restricted Subsidiary Incurred pursuant to paragraph (a) of this Xxxxxxx 000 xx xxxxxx (x), (xx), (xxx), (x), (xx), (x) or (xi) of this paragraph (b) or this clause (vi), in an aggregate principal amount (or if issued at a discount, the then-Accreted Value) not to exceed the aggregate principal amount (or if issued at a discount, the then-Accreted Value) of and accrued interest on the Debt so refinanced plus any Additional Refinancing Amount; provided, however, that (A) if the Person that originally Incurred the Debt to be refinanced became, or would have been required to become if not already, a Guarantor or a Loan Proceeds Note Guarantor as a result of the Incurrence of the Debt being refinanced in accordance with this covenant, (1) the Person that Incurs the refinancing Debt pursuant to this clause (vi) (if not the Issuer) shall be a Guarantor or a Loan Proceeds Note Guarantor, as applicable, and (2) if the Debt to be refinanced is subordinated to the Loan Proceeds Note Guarantee of such Loan Proceeds Note Guarantor, the refinancing Debt shall be subordinated to the same extent to the Loan Proceeds Note Guarantee of the Loan Proceeds Note Guarantor Incurring such refinancing Debt, (B) the refinancing Debt of the Issuer or any Guarantor shall not be senior in right of payment to the Debt that is being refinanced and (C) in the case of any refinancing of Debt Incurred pursuant to paragraph (a) of this Section 908 or clause (i), (v), (ix), (x) or (xi) or, if such Debt previously refinanced Debt Incurred pursuant to any such clause, this clause (vi), the refinancing Debt by its terms, or by the terms of any agreement or instrument pursuant to which such Debt is issued, (x) does not provide for payments of principal of such Debt at stated maturity or by way of a sinking fund applicable thereto or by way of any mandatory redemption, defeasance, retirement or repurchase thereof by the Issuer or any Issuer Restricted Subsidiary (including any redemption, retirement or repurchase which is contingent upon events or circumstances, but excluding any retirement required by virtue of the acceleration of any payment with respect to such Debt upon any event of default thereunder), in each case prior to earlier of the time the same are required by the terms of the Debt being refinanced and the maturity date of the Securities and (y) does not permit redemption or other retirement (including pursuant to an offer to purchase made by the Issuer or an Issuer Restricted Subsidiary) of such Debt at the option of the holder thereof prior to the earlier of the time the same are required by the terms of the Debt being refinanced and the maturity date of the Securities, other than, in the case of clause (x) or (y), (1) any such payment, redemption or other retirement (including pursuant to an offer to purchase made by the Issuer) which is conditioned upon a change of control or upon an asset sale and (2) any Debt in an aggregate principal amount not in excess of the Maturity Limitation Excluded Amount;
(vii) Debt of the Issuer or any Issuer Restricted Subsidiary (A) in respect of performance, surety or appeal bonds, Guarantees, letters of credit or reimbursement obligations Incurred or provided in the ordinary course of business securing the performance of contractual, franchise, lease, self-insurance or license obligations and not in connection with the Incurrence of Debt, (B) in respect of customary agreements providing for indemnification, adjustment of purchase price after closing, or similar obligations, or from Guarantees or letters of credit, surety bonds banker’s acceptances or performance bonds securing any such obligations other forms of the Issuer guarantees and assurances issued or any Issuer Restricted Subsidiary pursuant to such agreements, Incurred in connection with the disposition of any business, assets or Issuer Restricted Subsidiary (other than Guarantees of Debt Incurred by any Person acquiring all or any portion of such business, assets or Issuer Restricted Subsidiary for the purpose of financing such acquisitioncreated thereunder) and in an aggregate principal amount not to exceed €590 million, plus, in the gross proceeds actually received by the Issuer case of any renewal or refinancing of any Debt permitted under this clause (b) or any Issuer Restricted Subsidiary portion thereof, the aggregate amount of fees, underwriting discounts, premiums, defeasance costs and other costs and expenses incurred in connection with such dispositionrenewal or refinancing;
(iii) the incurrence by the Parent Guarantor or any Restricted Subsidiary of intercompany Debt between the Parent Guarantor and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that: (A) any disposition or transfer of any such Debt to a Person (other than a disposition or transfer to the Parent Guarantor or a Restricted Subsidiary) and (B) any subsequent issuance or transfer of any Capital Stock that results in any such Debt being held by a Person other than the Parent Guarantor or a Restricted Subsidiary, will, in each case, be deemed to be an incurrence of such Debt not permitted by this clause (Ciii);
(iv) consisting any Debt of the financing Parent Guarantor or any Restricted Subsidiary (other than Debt described in clauses (i) and (ii) of insurance premiums this paragraph) outstanding on the date of this Indenture after giving effect to the use of proceeds of the issuance of the Notes on the Issue Date;
(v) guarantees of the Parent Guarantor’s Debt or Debt of any Restricted Subsidiary by the Parent Guarantor or any Restricted Subsidiary; provided that the Restricted Subsidiary complies, to the extent applicable, with Section 4.12;
(vi) the incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt under Currency Agreements, Interest Rate Agreements or Commodity Hedging Agreements, in each case entered into not for speculative purposes (as determined in good faith by the Board of Directors or a member of senior management of the Parent Guarantor) (collectively, “Hedging Obligations");
(vii) the incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt in the form of customer deposits and advance payments received in the ordinary course of business from customers for goods or services purchased in the ordinary course of business;
(viii) the incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt represented by Capitalized Lease Obligations, (D) consisting mortgage financings or purchase money obligations or other Debt incurred for the purpose of take-or-pay obligations contained in supply arrangementsfinancing all or any part of the purchase price or cost of design, in each caseconstruction, installation or improvement of property, plant or equipment used in the ordinary course business of business the Parent Guarantor or any of its Restricted Subsidiaries;
(Eix) the incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt in any Qualified Securitization Financing in an aggregate principal amount which, together with all other Debt in respect of any Qualified Securitization Financing outstanding on the date of such incurrence (other than Debt permitted by paragraph (1) or clause (c) of this paragraph (2)), does not exceed 85% of the sum of (x) the total amount of accounts receivable shown on the Parent Guarantor’s most recent consolidated quarterly balance sheet, plus (y) without duplication, the total amount of accounts receivable already subject to a Qualified Securitization Financing;
(x) the incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt arising from (i) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary coursecourse of business; provided that such Debt is extinguished promptly upon within 30 Business Days of incurrence, (ii) bankers’ acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations, (iii) completion guarantees or performance or appeal bonds provided or letters of credit obtained by the Issuer Parent Guarantor or such Issuer any Restricted Subsidiary’s obtaining knowledge Subsidiary in the ordinary course of its occurrencebusiness, (iv) VAT or other tax guarantees in the ordinary course of business, (v) the financing of insurance premiums in the ordinary course of business and (vi) any customary cash management, cash pooling or netting or setting off arrangements;
(viii) Debt of the Issuer or any Issuer Restricted Subsidiary consisting of Permitted Hedging Agreements;
(1xi) Debt of any Foreign Person incurred and outstanding on the date on which such Person becomes a Restricted Subsidiary that of the Parent Guarantor or is an Issuer merged, consolidated, amalgamated or otherwise combined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Parent Guarantor or any Restricted Subsidiary (other than Debt incurred (y) to provide all or any portion of the funds used to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Parent Guarantor or a Restricted Subsidiary or (2z) otherwise in connection with or contemplation of such acquisition); provided, however, with respect to this clause (xi), that at the time of such acquisition or other transaction pursuant to which such Debt incurred on behalf of, or representing Guarantees of Debt of, Joint Ventures of the Issuer or any Issuer Restricted Subsidiary, not otherwise permitted is deemed to be Incurred pursuant to incurred, (A) the Parent Guarantor could incur at least €1.00 of additional Debt under paragraph (a) of this Section 908 4.08, after giving pro forma effect to such acquisition or other transaction or (B) the Consolidated Fixed Charge Coverage Ratio would not be less than it was immediately prior to giving effect to such acquisition or other transaction;
(xii) the incurrence by the Parent Guarantor or any Restricted Subsidiary of Permitted Refinancing Debt incurred to renew, refund, replace, refinance, defease or discharge Debt incurred by it pursuant to, or described in, paragraph (a) and clauses (i), (iv), (viii) and (xi) of this paragraph (b) and this clause (xii), as the case may be; and
(xiii) the incurrence by the Parent Guarantor or any Restricted Subsidiary of Debt (other than and in addition to Debt permitted under clauses (i) through (viiixii) above above) in an aggregate principal amount at any one time outstanding, including all Permitted Refinancing Debt incurred to renew, refund, replace, refinance, defease or clause (x) below, which, together with discharge any other outstanding Debt Incurred incurred pursuant to this clause (ix) and the amount of all refinancing Debt outstanding or available pursuant to clause (vi) above in respect of Debt previously Incurred pursuant to this clause (ix) (other than any Additional Refinancing Amountxiii), has an aggregate principal amount not to exceed the greater of (A) $300,000,000 and (B) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available;
(a) Issue Date Purchase Money Debt initially Incurred by the Issuer or any Issuer Restricted Subsidiary or another Person that became an Issuer Restricted Subsidiary on or before the Issue Date and (b) additional Purchase Money Debt Incurred by the Issuer or any Issuer Restricted Subsidiary; provided that, in the case of this clause (b), the amount of such Purchase Money Debt (together with the amount of all refinancing Debt outstanding or available pursuant to clause (vi) above in respect of such Purchase Money Debt (other than any Additional Refinancing Amount)) does not exceed 100% of the cost of the construction, installation, acquisition, lease, development or improvement of the applicable assets acquired; and
(xi) Debt under the Existing Notes issued prior to the Issue Date€75 million.
(c) Notwithstanding any other provision Accrual of this Section 908interest or dividends, (A) the maximum amount accretion of Debt accreted value, the Issuer or any Issuer Restricted Subsidiary may Incur pursuant to this Section 908 shall not be deemed to be exceeded due solely to the result of fluctuations in the exchange rates of currencies and (B) accrual of interest, accretion or amortization of original issue discount, the obligation to pay commitment fees, the reclassification of preferred stock as Debt due to a change in accounting principles and the payment of interest on any Debt or dividends in the form of additional Debt with the same terms, and the payment of dividends on Disqualified Stock or in the form of additional shares of the same class of Disqualified Stock shall will not be deemed to be an incurrence of Debt for purposes of this covenant.
(d) For purposes of determining compliance with any restriction on the incurrence of Debt in euro where Debt is denominated in a different currency, the euro-equivalent principal amount of such Debt will be calculated based on the relevant currency exchange rate in effect on the date such Debt was incurred, in the case of term debt, or first committed, in the case of Debt incurred under a revolving credit facility; provided that (i) if any such Debt denominated in a different currency is subject to a Currency Agreement (with respect to euro) covering principal amounts payable on such Debt, the amount of such Debt expressed in euro will be adjusted to take into account the effect of such agreement. The principal amount of any Permitted Refinancing Debt incurred in the same currency as the Debt being refinanced will be the euro-equivalent of the Debt refinanced determined on the date such Debt being refinanced was initially incurred, except to the extent that such euro equivalent was determined based on a Currency Agreement (with respect to euro), in which case the amount of such Permitted Refinancing Debt will be adjusted to take into account the effect of such agreement. Notwithstanding any other provision of this covenant, for purposes of determining compliance with this Section 4.08, increases in Debt solely due to fluctuations in the exchange rates of currencies or currency values will not be deemed to exceed the maximum amount that the Parent Guarantor or a Restricted Subsidiary may incur under this Section 4.08.
(e) For purposes of determining any particular amount of Debt under this Section 908, 4.08:
(1i) Guarantees, Liens or obligations with respect to letters of credit credit, guarantees or Liens, in each case supporting Debt otherwise included in the determination of such particular amount shall will not be included and included; and
(2ii) any Liens granted for the benefit of the Securities pursuant to the equal and ratable provisions of referred to in Section 910 shall 4.11 will not be treated as Debt. For purposes .
(f) The amount of determining compliance with this Section 908, (1) any Debt outstanding under as of any date will be:
(i) in the Existing Issuer Credit Facility will be treated as Incurred on case of any Debt issued with original issue discount, the Issue Date pursuant to clause amount of the liability in respect thereof determined in accordance with Accounting Principles;
(ii) the principal amount of paragraph the Debt, in the case of any other Debt; and
(biii) in respect of Debt of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date of determination; and
(B) the amount of the Debt of the other Person.
(g) If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Debt of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary of the Parent Guarantor as of such date (and, if such Debt is not permitted to be incurred as of such date under this Section 4.08, the Restricted Subsidiary shall be in Default of this Section 908 and covenant).
(2h) in In the event that an item of Debt meets the criteria of more than one of the types of Debt described in the above clausesSection 4.08(a) or (b), the IssuerParent Guarantor, in its sole discretion, may divide and shall classify (and, subject to clause (1) above, may later reclassify) such item items of Debt and shall only be required to include the amount and type of such Debt in one of such clauses. When classifying multiple Incurrences clauses and the Parent Guarantor shall be entitled to divide and classify an item of Debt on in more than one of the same daytypes of Debt described in Section 4.08(a) or (b), and may change the classification of an item of Debt (or any portion thereof) to any other type of Debt described in Section 4.08(a) or (b) at any time. Any Debt under the New Senior Facilities Agreement must be incurred under paragraph b(ii) of this covenant; provided that if at the time of incurrence the amount of any such Debt would exceed the amount available for incurrence under paragraph b(ii) of this covenant, the Issuer Parent Guarantor may, in its sole discretion, specify the order of Incurrence of incur such Debt and need only give pro forma effect to the specified Incurrence under paragraph (and a) or any prior Incurrenceother clause of paragraph (b) for purposes of classifying such specified Incurrencethis covenant. Any Debt incurred under paragraph b(ii) of this covenant may not be reclassified as incurred under paragraph (a) of this covenant.
Appears in 1 contract
Samples: Indenture (Elster Group SE)
Limitation on Debt. (a) The Issuer may notNone of the Group Companies will incur, and may not create, assume or permit any Issuer Restricted Subsidiary to, directly or indirectly, Incur to exist any Debt; provided, however, that Derivatives Obligations or Synthetic Lease Obligations except:
(i) Debt of the Issuer or Credit Parties under this Agreement and the other Finance Documents;
(ii) Debt arising under (A) the Senior Notes Indenture and the Senior Notes and (B) the Junior Debentures Indenture and the Junior Debentures (but with respect to this clause (B) not including any Issuer Restricted Subsidiary renewal, refinancing or extension thereof);
(iii) Capital Lease Obligations and Purchase Money Debt of HGI and its Subsidiaries incurred after the Closing Date to finance Consolidated Capital Expenditures; provided that (A) the aggregate amount of all such Debt (together with refinancing thereof permitted by clause (v) below) does not exceed $5,000,000 at any time outstanding, (B) the Debt when incurred shall not be less than 75% of the lesser of the cost or fair market value as of the time of acquisition of the asset financed, (C) such Debt is issued and any Liens securing such Debt are created concurrently with, or within 180 days after, the acquisition of the asset financed and (D) no Lien securing such Debt shall extend to or cover any property or asset of any Group Company other than the asset so financed;
(iv) Debt of HGI or its Subsidiaries secured by Liens permitted by clauses (xi), (xii) and (xiii) of Section 7.02 or any other Debt acquired or assumed in a Guarantor Permitted Business Acquisition or in connection with the acquisition of assets; provided that (A) the aggregate principal amount of all Debt acquired or assumed pursuant to this clause (iv) (together with refinancings thereof permitted by clause (v) below) shall not exceed (x) in the aggregate, $75,000,000 at any time outstanding at any time prior to the first anniversary of the Closing Date, $100,000,000 at any time outstanding at any time on or after the first anniversary of the Closing Date and prior to the second anniversary of the Closing Date and $150,000,000 at any time outstanding at any time on or after the second anniversary of the Closing Date and (y) in the case of any such Debt acquired or assumed by a Credit Party that does not constitute unsecured Subordinated Debt $20,000,000 at any time outstanding and (B) in the case of any such Debt acquired or assumed by a Credit Party, such Debt was not incurred in connection with, or in anticipation of, the events described in such clauses;
(v) Debt (A) of HGI representing a refinancing or replacement of the Senior Notes and Senior Notes Indenture, (B) of Holdings representing a refinancing, replacement or refunding of the Junior Debentures and Junior Debentures Indenture permitted by clause (ii) above, provided that the Required Lenders shall have given their prior written consent to such refinancing, replacement or refunding, which consent shall not be unreasonably withheld or delayed, or (C) of HGI or its Subsidiaries representing a refinancing, replacement or refunding of Debt permitted by clause (iii) or (iv) above, provided in each case that (1) such Debt (the “Refinancing Debt”) is an original aggregate principal amount not greater than the aggregate principal amount of, and unpaid interest on, the Debt being refinanced, replaced or refunded plus the amount of any premiums required to be paid thereon and fees and expense associated therewith, (2) such Refinancing Debt has a later or equal final maturity and a Loan Proceeds Note Guarantor may incur larger or equal weighted average life than the Debt being refinanced, replaced or refunded, (3) if the Debt being refinanced, replaced or refunded is subordinated to the Senior Obligations, such Refinancing Debt is subordinated to the Senior Obligations on terms no less favorable to the Lenders than the terms of the Debt being refinanced, replaced or refunded, (4) the covenants, events of default and any Guaranty Obligations in respect thereof shall be no less favorable to the Lenders than those contained in the Debt ifbeing refinanced, replaced or refunded and (5) after giving pro forma effect to to, such Incurrence and the receipt and application of the net proceeds thereofrefinancing, replacement or refunding, no Default or Event of Default would occur as a consequence of such Incurrence or shall have occurred and be continuing following such Incurrence and the Issuer Debt Ratio would be less than 5.75 to 1.0.
(b) Notwithstanding the foregoing limitation, the Issuer or any Issuer Restricted Subsidiary may Incur any and all of the following (each of which shall be given independent effect):
(i) Debt of the Issuer or any Issuer Restricted Subsidiary under the Securities issued on the Issue Date, any Note Guarantee in respect of the Securities issued on the Issue Date, the Loan Proceeds Note amended and restated in connection with the Securities issued on the Issue Date or any Loan Proceeds Note Guarantee in respect of the Loan Proceeds Notecontinuing;
(iivi) Derivatives Obligations of HGI or any Subsidiary under Derivatives Agreements to the extent entered into after the Closing Date in compliance with Section 6.11 or to manage interest rate or foreign currency exchange rate risks and not for speculative purposes;
(vii) Debt owed to any Person providing property, casualty, liability or other insurance to the Borrower or any Subsidiary of the Issuer or any Issuer Restricted Subsidiary under Credit Facilities Borrower, so long as such Debt shall not be in an aggregate principal amount outstanding or available (together with excess of the amount of (x) outstanding Securities issued on the Issue Date unpaid cost of, and (y) all refinancing Debt outstanding or available pursuant shall be incurred only to clause (vi) below in respect of defer the Securities issued on the Issue Date and Debt previously Incurred pursuant to this clause (ii) (other than any Additional Refinancing Amount)) at any one time not to exceed the greater of (x) $5.011 billion and (y) 4.0 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries cost of, such insurance for the four full fiscal quarters immediately preceding the Incurrence of year in which such Debt for which the consolidated financial statements required to be delivered under Section 905 are available;
(iii) Debt of the Issuer or any Issuer Restricted Subsidiary outstanding on the Measurement Date;
(iv) Debt owed by (A) the Issuer to any Issuer Restricted Subsidiary, (B) any Issuer Restricted Subsidiary to the Issuer or any other Issuer Restricted Subsidiary, provided that in each case of clause (A) and (B), (x) upon the transfer, conveyance or other disposition by such Issuer Restricted Subsidiary or the Issuer of any Debt so permitted to a Person other than the Issuer or another Issuer Restricted Subsidiary or (y) if for any reason such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, the provisions of clause (A) or clause (B), as applicable, shall no longer be applicable to such Debt is incurred and such Debt shall be deemed to have been Incurred outstanding only during such year;
(viii) Debt consisting of Guaranty Obligations (A) by OH Holdings, Holdings, Intermediate Holdings and the issuer thereof at other Subsidiary Guarantors in respect of Debt incurred by HGI under the time of such transfer, conveyance Senior Notes or other disposition or when such Issuer Restricted Subsidiary ceases otherwise permitted to be an Issuer Restricted Subsidiary, (C) the Issuer incurred by HGI or any Issuer Restricted Subsidiary to Level 3 Parent in an aggregate principal amountof its Subsidiaries, in the case of this clause (C), not in excess of the greater of (x) $300,000,000 and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available at any time outstanding; provided, however, that Level 3 Parent is a Guarantor; or (D) the Issuer or any Issuer Restricted Subsidiary to any member of the CenturyLink Credit Group in an aggregate principal amountall such Guaranty Obligations by OH Holdings, in the case of this clause (D)Holdings, not in excess of the greater of (x) $300,000,000 and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer Intermediate Holdings and the Issuer Restricted Subsidiaries for other Subsidiary Guarantors shall be unsecured, (B) by Holdings in respect of Debt incurred by Xxxxxxx Group Capital Trust under the four full fiscal quarters immediately preceding the Incurrence Trust Preferred Securities, (C) by HGI in respect of such Debt for which the consolidated financial statements required permitted to be delivered under this Indenture are available at any time outstanding; provided that, in incurred by the case Subsidiaries of clauses OH Holdings (Cother than the Borrower) and (D) above, with respect by Subsidiaries of OH Holdings (other than the Borrower) of Debt permitted to any such Debt be incurred by HGI or Subsidiaries of the Issuer, any Guarantor that is an Issuer Restricted Subsidiary or any Loan Proceeds Note Guarantor that is an Issuer Restricted Subsidiary, the payment obligation with respect to such Debt is expressly subordinated in any bankruptcy, liquidation or winding up proceeding of the obligor to the prior payment in full in cash of all obligations with respect to the Securities or the Loan Proceeds Note Guarantee of such Loan Proceeds Note Guarantor, respectivelyHGI;
(vix) Debt Incurred by a Person prior to the time (A) such Person became an Issuer Restricted Subsidiary, (B) such Person merges into Debt owing to HGI or consolidates with an Issuer Restricted a Subsidiary or (C) an Issuer Restricted Subsidiary merges into or consolidates with such Person (in a transaction in which such Person becomes an Issuer Restricted Subsidiary), and Debt Incurred to finance any such transaction; provided, however, that after giving effect of HGI to the Incurrence of any Debt pursuant to this clause (v), either (1) the Issuer could Incur at least $1.00 of additional Debt pursuant to paragraph (a) of this extent permitted by Section 908 computed using “6.0 to 1.0” rather than “5.75 to 1.0” as it appears therein or (2) the ratio computed pursuant to paragraph (a) of this Section 908 would be no higher than before giving effect to the Incurrence of such Debt;
(vi) Debt of the Issuer or any Issuer Restricted Subsidiary Incurred to renew, extend, refinance, defease, repay, prepay, repurchase, redeem, retire, exchange or refund (each, a “refinancing”) Debt of the Issuer or any Issuer Restricted Subsidiary Incurred pursuant to paragraph (a) of this Xxxxxxx 000 xx xxxxxx (x), (xx), (xxx7.06(a)(ix), (x), (xxxi) or (xxii) (but, in the case of Foreign Subsidiaries, subject to the limitations set forth in Section 7.01(xviii)) and (B) Debt owing by HGI to OH Holdings, Holdings or Intermediate Holdings to the extent permitted by (x) Section 7.06(a)(xi) or (y) incurred in connection with tax planning, provided that in the case of (y) the Administrative Agent shall have given its prior consent such consent not to be unreasonably withheld, conditioned or delayed;
(x) contingent liabilities in respect of any indemnification, adjustment of purchase price, earn-out, incentive, non-compete, consulting, deferred compensation and similar obligations of OH Holdings and its Subsidiaries incurred in connection with the Acquisition and Permitted Business Acquisitions;
(xi) Debt of HGI or any of its Subsidiaries that is issued to a seller of assets or a Person the subject of a Permitted Business Acquisition or that is otherwise incurred to fund consideration payable in a Permitted Business Acquisition (and for no other purpose) in a transaction permitted by this paragraph (b) or this clause (vi), Agreement in an aggregate principal amount (or if issued at a discount, the then-Accreted Value) any one time outstanding not to exceed the aggregate principal amount (or if issued at a discount, the then-Accreted Value) of and accrued interest on the Debt so refinanced plus any Additional Refinancing Amountexceeding $40,000,000; provided, however, provided that (A) if the Person any such Debt that originally Incurred the Debt to be refinanced became, or would have been required to become if not already, a Guarantor or a Loan Proceeds Note Guarantor as a result of the Incurrence of the Debt being refinanced in accordance with this covenant, (1) the Person that Incurs the refinancing Debt pursuant to this clause (vi) (if not the Issuer) shall be a Guarantor or a Loan Proceeds Note Guarantor, as applicable, and (2) if the Debt to be refinanced is subordinated to the Loan Proceeds Note Guarantee of such Loan Proceeds Note Guarantor, the refinancing constitutes Subordinated Debt shall be subordinated to the same extent to the Loan Proceeds Note Guarantee of the Loan Proceeds Note Guarantor Incurring such refinancing Debt, unsecured and (B) any such Debt other than Subordinated Debt shall be unsecured and shall not (together with all Debt assumed pursuant to subclause (A)(y) of the refinancing proviso to clause (iv) above) exceed $20,000,000 at any one time outstanding;
(xii) unsecured Debt of OH Holdings, Holdings or Intermediate Holdings representing the Issuer obligation of OH Holdings, Holdings or any Guarantor shall not be senior in right of payment Intermediate Holdings to the Debt that is being refinanced and (C) in the case of any refinancing of Debt Incurred pursuant to paragraph (a) of this Section 908 or clause (i), (v), (ix), (x) or (xi) or, if such Debt previously refinanced Debt Incurred pursuant to any such clause, this clause (vi), the refinancing Debt by its terms, or by the terms of any agreement or instrument pursuant to which such Debt is issued, (x) does not provide for make payments of principal of such Debt at stated maturity or by way of a sinking fund applicable thereto or by way of any mandatory redemption, defeasance, retirement or repurchase thereof by the Issuer or any Issuer Restricted Subsidiary (including any redemption, retirement or repurchase which is contingent upon events or circumstances, but excluding any retirement required by virtue of the acceleration of any payment with respect to such Debt upon any event the cancellation or repurchase of default thereunder)certain Equity Interests of officers, in each case prior to earlier of the time the same are required by the terms of the Debt being refinanced and the maturity date of the Securities and employees or directors (y) does not permit redemption or other retirement (including pursuant to an offer to purchase made by the Issuer or an Issuer Restricted Subsidiarytheir estates) of such Debt at the option of the holder thereof prior Holdings and its Subsidiaries, to the earlier of the time the same are required extent permitted by the terms of the Debt being refinanced and the maturity date of the Securities, other than, in the case of clause (x) or (ySection 7.07(iii), (1) any such payment, redemption or other retirement (including pursuant to an offer to purchase made by the Issuer) which is conditioned upon a change of control or upon an asset sale and (2) any Debt in an aggregate principal amount not in excess of the Maturity Limitation Excluded Amount;
(viixiii) Debt of the Issuer or any Issuer Restricted Subsidiary (A) contingent liabilities in respect of performance, surety or appeal bonds, Guarantees, letters of credit or reimbursement obligations Incurred or provided in the ordinary course of business securing the performance of contractual, franchise, lease, self-insurance or license obligations and not in connection with the Incurrence of Debt, (B) in respect of customary agreements providing for any indemnification, adjustment of purchase price after closingprice, or earn-out, incentive, non-compete, consulting, deferred compensation and similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any such obligations of the Issuer OH Holdings and its Subsidiaries incurred or any Issuer Restricted Subsidiary pursuant to such agreements, Incurred assumed in connection with the disposition of any business, assets or Issuer Restricted Subsidiary (a Subsidiary, other than Guarantees Guaranty Obligations in respect of Debt Incurred by of any Person acquiring all or any portion of such business, assets or Issuer Restricted Subsidiary for the purpose of financing such acquisition;
(xiv) Debt in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in an aggregate principal amount not to exceed the gross proceeds actually received by the Issuer or any Issuer Restricted Subsidiary in connection with such disposition, (C) consisting of the financing of insurance premiums each case provided in the ordinary course of business, (D) consisting of take-or-pay including those incurred to secure health, safety and environmental obligations contained in supply arrangements, in each case, in the ordinary course of business or business;
(Exv) Debt 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 coursecourse of business; provided that (A) such Debt (other than credit or purchase cards) is extinguished promptly upon the Issuer or such Issuer Restricted Subsidiary’s obtaining knowledge within three Business Days of its occurrenceincurrence and (B) such Debt in respect of credit or purchase cards in extinguished within 60 days from its incurrence;
(viiixvi) accrual of interest on Debt otherwise permitted under this Section 7.01, accretion or amortization of the Issuer or any Issuer Restricted Subsidiary consisting original issue discount with respect to Debt otherwise permitted under this Section 7.01 and/or Debt incurred as a result of Permitted Hedging Agreementspayment of interest in kind on Debt otherwise permitted under this Section 7.01;
(1xvii) Debt or Synthetic Lease Obligations of any Foreign Restricted Subsidiary that is an Issuer Restricted Subsidiary or (2) Debt incurred on behalf of, or representing Guarantees of Debt of, Joint Ventures of the Issuer or any Issuer Restricted Subsidiary, HGI and its Subsidiaries not otherwise permitted to be Incurred pursuant to paragraph (a) of by this Section 908 or clauses (i) through (viii) above or clause (x) below, which, together with any other outstanding Debt Incurred pursuant to this clause (ix) and 7.01 incurred after the amount of all refinancing Debt outstanding or available pursuant to clause (vi) above Closing Date in respect of Debt previously Incurred pursuant to this clause (ix) (other than any Additional Refinancing Amount), has an aggregate principal amount not to exceed the greater $20,000,000 at any time outstanding; provided that no Default or Event of Default shall have occurred and be continuing immediately before and immediately after giving effect to such incurrence; and
(Axviii) Debt of Foreign Subsidiaries of HGI in an aggregate principal amount not to exceed (x) $300,000,000 25,000,000 at any time outstanding, if such Debt is incurred, assumed or acquired in connection with a Permitted Business Acquisition or an acquisition of assets and (By) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available;
(a) Issue Date Purchase Money Debt initially Incurred by the Issuer or $1,000,000 at any Issuer Restricted Subsidiary or another Person that became an Issuer Restricted Subsidiary on or before the Issue Date and (b) additional Purchase Money Debt Incurred by the Issuer or any Issuer Restricted Subsidiary; provided thattime outstanding, in the case of this clause (b), the amount of such Purchase Money Debt (together with the amount of all refinancing Debt outstanding or available pursuant to clause (vi) above in respect of such Purchase Money Debt (other than any Additional Refinancing Amount)) does not exceed 100% of the cost of the construction, installation, acquisition, lease, development or improvement of the applicable assets acquired; and
(xi) Debt under the Existing Notes issued prior to the Issue Date.
(c) Notwithstanding any other provision of this Section 908, (A) the maximum amount of Debt the Issuer or any Issuer Restricted Subsidiary may Incur pursuant to this Section 908 shall not be deemed to be exceeded due solely to the result of fluctuations in the exchange rates of currencies and (B) accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Debt in the form of additional Debt with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock shall not be deemed to be an incurrence of Debt for purposes of this covenantDebt.
(d) For purposes of determining any particular amount of Debt under this Section 908, (1) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (2) any Liens granted for the benefit of the Securities pursuant to the provisions of Section 910 shall not be treated as Debt. For purposes of determining compliance with this Section 908, (1) any Debt outstanding under the Existing Issuer Credit Facility will be treated as Incurred on the Issue Date pursuant to clause (ii) of paragraph (b) of this Section 908 and (2) in the event that an item of Debt meets the criteria of more than one of the types of Debt described in the above clauses, the Issuer, in its sole discretion, may divide and classify (and, subject to clause (1) above, may later reclassify) such item of Debt and only be required to include the amount and type of such Debt in one of such clauses. When classifying multiple Incurrences of Debt on the same day, the Issuer may, in its sole discretion, specify the order of Incurrence of such Debt and need only give pro forma effect to the specified Incurrence (and any prior Incurrence) for purposes of classifying such specified Incurrence.
Appears in 1 contract
Limitation on Debt. (a) The Issuer may not, and may not permit any Issuer Restricted Subsidiary to, directly or indirectly, Incur any Debt; provided, however, that (i) the Issuer or (ii) any Issuer Restricted Subsidiary that is a Guarantor and a Loan Proceeds Note Guarantor may incur any Debt if, after giving pro forma effect to such Incurrence and the receipt and application of the net proceeds thereof, no Default or Event of Default would occur as a consequence of such Incurrence or be continuing following such Incurrence and the Issuer Debt Ratio would be less than 5.75 to 1.0.
(b) Notwithstanding the foregoing limitation, the Issuer or any Issuer Restricted Subsidiary may Incur any and all of the following (each of which shall be given independent effect):
(i) Debt of the Issuer or any Issuer Restricted Subsidiary under the Securities issued on the Issue Date, any Note Guarantee in respect of the Securities issued on the Issue Date, the Loan Proceeds Note amended and restated in connection with the Securities issued on the Issue Date or any Loan Proceeds Note Guarantee in respect of the Loan Proceeds Note;
(ii) Debt of the Issuer or any Issuer Restricted Subsidiary under Credit Facilities in an aggregate principal amount outstanding or available (together with the amount of (x) outstanding Existing Secured Notes, (y) Outstanding Securities issued on the Issue Date and (yz) all refinancing Debt outstanding or available pursuant to clause (vi) below in respect of the Securities issued on the Issue Date and Debt previously Incurred pursuant to this clause (ii) (other than any Additional Refinancing Amount)) at any one time not to exceed the greater of (x) $5.011 billion and (y) 4.0 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available;
(iii) Debt of the Issuer or any Issuer Restricted Subsidiary outstanding on the Measurement Date;
(iv) Debt owed by (A) the Issuer to any Issuer Restricted Subsidiary, (B) any Issuer Restricted Subsidiary to the Issuer or any other Issuer Restricted Subsidiary, provided that in each case of clause (A) and (B), (x) upon the transfer, conveyance or other disposition by such Issuer Restricted Subsidiary or the Issuer of any Debt so permitted to a Person other than the Issuer or another Issuer Restricted Subsidiary or (y) if for any reason such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, the provisions of clause (A) or clause (B), as applicable, shall no longer be applicable to such Debt and such Debt shall be deemed to have been Incurred by the issuer thereof at the time of such transfer, conveyance or other disposition or when such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, (C) the Issuer or any Issuer Restricted Subsidiary to Level 3 Parent in an aggregate principal amount, in the case of this clause (C), not in excess of the greater of (x) $300,000,000 and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available at any time outstanding; provided, however, that Level 3 Parent is a Guarantor; or (D) the Issuer or any Issuer Restricted Subsidiary to any member of the CenturyLink Lumen Credit Group in an aggregate principal amount, in the case of this clause (D), not in excess of the greater of (x) $300,000,000 and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under this Indenture are available at any time outstanding; provided that, in the case of clauses (C) and (D) above, with respect to any such Debt of the Issuer, any Guarantor that is an Issuer Restricted Subsidiary or any Loan Proceeds Note Guarantor that is an Issuer Restricted Subsidiary, the payment obligation with respect to such Debt is expressly subordinated in any bankruptcy, liquidation or winding up proceeding of the obligor to the prior payment in full in cash of all obligations with respect to the Securities or the Loan Proceeds Note Guarantee of such Loan Proceeds Note Guarantor, respectively;
(v) Debt Incurred by a Person prior to the time (A) such Person became an Issuer Restricted Subsidiary, (B) such Person merges into or consolidates with an Issuer Restricted Subsidiary or (C) an Issuer Restricted Subsidiary merges into or consolidates with such Person (in a transaction in which such Person becomes an Issuer Restricted Subsidiary), and Debt Incurred to finance any such transaction; provided, however, that after giving effect to the Incurrence of any Debt pursuant to this clause (v), either (1) the Issuer could Incur at least $1.00 of additional Debt pursuant to paragraph (a) of this Section 908 computed using “6.0 to 1.0” rather than “5.75 to 1.0” as it appears therein or (2) the ratio computed pursuant to paragraph (a) of this Section 908 would be no higher than before giving effect to the Incurrence of such Debt;
(vi) Debt of the Issuer or any Issuer Restricted Subsidiary Incurred to renew, extend, refinance, defease, repay, prepay, repurchase, redeem, retire, exchange or refund (each, a “refinancing”) Debt of the Issuer or any Issuer Restricted Subsidiary Incurred pursuant to paragraph (a) of this Xxxxxxx 000 xx xxxxxx Section 908 or clause (xi), (xxii), (xxxiii), (xv), (xxix), (x) or (xi) of this paragraph (b) or this clause (vi), in an aggregate principal amount (or if issued at a discount, the then-Accreted Value) not to exceed the aggregate principal amount (or if issued at a discount, the then-Accreted Value) of and accrued interest on the Debt so refinanced plus any Additional Refinancing Amount; provided, however, that (A) if the Person that originally Incurred the Debt to be refinanced became, or would have been required to become if not already, a Guarantor or a Loan Proceeds Note Guarantor as a result of the Incurrence of the Debt being refinanced in accordance with this covenant, (1) the Person that Incurs the refinancing Debt pursuant to this clause (vi) (if not the Issuer) shall be a Guarantor or a Loan Proceeds Note Guarantor, as applicable, and (2) if the Debt to be refinanced is subordinated to the Loan Proceeds Note Guarantee of such Loan Proceeds Note Guarantor, the refinancing Debt shall be subordinated to the same extent to the Loan Proceeds Note Guarantee of the Loan Proceeds Note Guarantor Incurring such refinancing Debt, (B) the refinancing Debt of the Issuer or any Guarantor shall not be senior in right of payment to the Debt that is being refinanced and (C) in the case of any refinancing of Debt Incurred pursuant to paragraph (a) of this Section 908 or clause (i), (v), (ix), (x) or (xi) or, if such Debt previously refinanced Debt Incurred pursuant to any such clause, this clause (vi), the refinancing Debt by its terms, or by the terms of any agreement or instrument pursuant to which such Debt is issued, (x) does not provide for payments of principal of such Debt at stated maturity or by way of a sinking fund applicable thereto or by way of any mandatory redemption, defeasance, retirement or repurchase thereof by the Issuer or any Issuer Restricted Subsidiary (including any redemption, retirement or repurchase which is contingent upon events or circumstances, but excluding any retirement required by virtue of the acceleration of any payment with respect to such Debt upon any event of default thereunder), in each case prior to the earlier of the time the same are required by the terms of the Debt being refinanced and the maturity date of the Securities and (y) does not permit redemption or other retirement (including pursuant to an offer to purchase made by the Issuer or an Issuer Restricted Subsidiary) of such Debt at the option of the holder thereof prior to the earlier of the time the same are required by the terms of the Debt being refinanced and the maturity date of the Securities, other than, in the case of clause (x) or (y), (1) any such payment, redemption or other retirement (including pursuant to an offer to purchase made by the Issuer) which is conditioned upon a change of control or upon an asset sale and (2) any Debt in an aggregate principal amount not in excess of the Maturity Limitation Excluded Amount;
(vii) Debt of the Issuer or any Issuer Restricted Subsidiary (A) in respect of performance, surety or appeal bonds, Guarantees, letters of credit credit, indemnity or reimbursement obligations Incurred or provided in the ordinary course of business securing the performance of contractual, franchise, lease, self-insurance, workers’ compensation, health, disability or other employee benefits, property, casualty or liability insurance or license obligations and not in connection with the Incurrence of Debt, (B) in respect of customary agreements providing for indemnification, adjustment of purchase price after closing, or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any such obligations of the Issuer or any Issuer Restricted Subsidiary pursuant to such agreements, Incurred in connection with the disposition of any business, assets or Issuer Restricted Subsidiary (other than Guarantees of Debt Incurred by any Person acquiring all or any portion of such business, assets or Issuer Restricted Subsidiary for the purpose of financing such acquisition) and in an aggregate principal amount not to exceed the gross proceeds actually received by the Issuer or any Issuer Restricted Subsidiary in connection with such disposition, (C) consisting of the financing of insurance premiums in the ordinary course of business, (D) consisting of take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business or business, (E) 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; provided that such Debt is extinguished promptly upon the Issuer or such Issuer Restricted Subsidiary’s obtaining knowledge of its occurrence, (F) letters of credit, bank guarantees, warehouse receipts or similar instruments issued in the ordinary course of business or (G) deferred compensation to employees, consultants or independent contractors in the ordinary course of business;
(viii) Debt of the Issuer or any Issuer Restricted Subsidiary consisting of Permitted Hedging AgreementsAgreements and Cash Management Agreements in the ordinary course of business;
(1) Debt of any Foreign Restricted Subsidiary that is an Issuer Restricted Subsidiary or (2) Debt incurred on behalf of, or representing Guarantees of Debt of, Joint Ventures of the Issuer or any Issuer Restricted Subsidiary, not otherwise permitted to be Incurred pursuant to paragraph (a) of this Section 908 or clauses (i) through (viii) above or clause (x) below, which, together with any other outstanding Debt Incurred pursuant to this clause (ix) and the amount of all refinancing Debt outstanding or available pursuant to clause (vi) above in respect of Debt previously Incurred pursuant to this clause (ix) (other than any Additional Refinancing Amount), has an aggregate principal amount not to exceed the greater of (A) $300,000,000 and (B) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available;
(a) Issue Date Purchase Money Debt initially Incurred by the Issuer or any Issuer Restricted Subsidiary or another Person that became an Issuer Restricted Subsidiary on or before the Issue Date and (b) additional Purchase Money Debt Incurred by the Issuer or any Issuer Restricted Subsidiary; provided that, in the case of this clause (b), the amount of such Purchase Money Debt (together with the amount of all refinancing Debt outstanding or available pursuant to clause (vi) above in respect of such Purchase Money Debt (other than any Additional Refinancing Amount)) does not exceed 100% of the cost of the construction, installation, acquisition, lease, development or improvement of the applicable assets acquired; and
(xi) Debt under the Existing Unsecured Notes issued prior to the Issue Date.
(c) Notwithstanding any other provision of this Section 908, (A) the maximum amount of Debt the Issuer or any Issuer Restricted Subsidiary may Incur pursuant to this Section 908 shall not be deemed to be exceeded due solely to the result of fluctuations in the exchange rates of currencies and (B) accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Debt in the form of additional Debt with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock shall not be deemed to be an incurrence of Debt for purposes of this covenant.
(d) For purposes of determining any particular amount of Debt under this Section 908, (1) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (2) any Liens granted for the benefit of the Securities pursuant to the provisions of referred to in Section 910 or Section 911 shall not be treated as Debt. For purposes of determining compliance with this Section 908, (1) any Debt outstanding under the Existing Issuer Credit Facility and the Existing Secured Notes will be treated as Incurred on the Issue Date pursuant to clause (ii) of paragraph (b) of this Section 908 and (2) in the event that an item of Debt meets the criteria of more than one of the types of Debt described in the above clauses, the Issuer, in its sole discretion, may divide and classify (and, subject to clause (1) above, may later reclassify) such item of Debt and only be required to include the amount and type of such Debt in one of such clauses. When classifying multiple Incurrences of Debt on the same day, the Issuer may, in its sole discretion, specify the order of Incurrence of such Debt and need only give pro forma effect to the specified Incurrence (and any prior Incurrence) for purposes of classifying such specified Incurrence.
Appears in 1 contract
Samples: Indenture (Level 3 Parent, LLC)
Limitation on Debt. (a) The Issuer may Parent Guarantor shall not, and may shall not permit any Issuer Restricted Subsidiary Group Member to, directly or indirectly, Incur create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Debt (including Acquired Debt); provided, however, that (i) the Issuer or (ii) and any Issuer Restricted Subsidiary that is a Guarantor and a Loan Proceeds Note Guarantor may incur any Debt ifif at the time of such incurrence, the Fixed Charge Coverage Ratio for the Parent Guarantor’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the incurrence of such Debt, taken as one period, would be greater than 2.25 to 1.00, determined on a pro forma basis after giving pro forma effect to the incurrence of such Incurrence Debt and the receipt and application of the net proceeds thereof, no Default or Event of Default would occur as a consequence of such Incurrence or be continuing following such Incurrence and the Issuer Debt Ratio would be less than 5.75 to 1.0.therefrom.
(b) Notwithstanding The foregoing paragraph shall not, however, prohibit the foregoing limitationincurrence of any of the following items of Debt (collectively “Permitted Debt”):
(i) the incurrence by the Issuer or any Guarantor under Credit Facilities of:
(A) Debt represented by the Super Senior Secured Notes issued on the Super Senior Secured Notes Issue Date and Debt incurred pursuant to the Revolving Credit Facility; provided that upon the refinancing of the Revolving Credit Facility, the Issuer or any Issuer Restricted Subsidiary Guarantor may Incur any and all incur Debt represented by additional Super Senior Secured Notes issued to the Holders of the following (each of which shall be given independent effect):
(i) Debt of the Issuer Notes or Related Funds or any Issuer Restricted Subsidiary under other person pursuant to, and permitted by, the Securities Scheme, that together with the Super Senior Secured Notes issued on the Super Senior Secured Notes Issue Date, any Note Guarantee in respect of the Securities issued on the Issue Date, the Loan Proceeds Note amended and restated in connection with the Securities issued on the Issue Date or any Loan Proceeds Note Guarantee in respect of the Loan Proceeds Note;
(ii) Debt of the Issuer or any Issuer Restricted Subsidiary under Credit Facilities in amount to an aggregate principal amount outstanding or available (together with the amount of (x) outstanding Securities issued on the Issue Date and (y) all refinancing Debt outstanding or available pursuant to clause (vi) below in respect of the Securities issued on the Issue Date and Debt previously Incurred pursuant to this clause (ii) (other than any Additional Refinancing Amount)) at any one time outstanding not to exceed the greater of (x) $5.011 billion and (y) 4.0 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available;
(iii) Debt of the Issuer or any Issuer Restricted Subsidiary outstanding on the Measurement Date;
(iv) Debt owed by (A) the Issuer to any Issuer Restricted Subsidiary, (B) any Issuer Restricted Subsidiary to the Issuer or any other Issuer Restricted Subsidiary, provided that in each case of clause (A) and (B), (x) upon the transfer, conveyance or other disposition by such Issuer Restricted Subsidiary or the Issuer of any Debt so permitted to a Person other than the Issuer or another Issuer Restricted Subsidiary or (y) if for any reason such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, the provisions of clause (A) or clause (B), as applicable, shall no longer be applicable to such Debt and such Debt shall be deemed to have been Incurred by the issuer thereof at the time of such transfer, conveyance or other disposition or when such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, (C) the Issuer or any Issuer Restricted Subsidiary to Level 3 Parent in an aggregate principal amount, in the case of this clause (C), not in excess of the greater of (x) $300,000,000 and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available €350.0 million at any time outstanding; provided, however, that Level 3 Parent is a Guarantor; or (D) the Issuer or any Issuer Restricted Subsidiary to any member of the CenturyLink Credit Group in an aggregate principal amount, in the case of this clause (D), not in excess of the greater of (x) $300,000,000 and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under this Indenture are available at any time outstanding; provided that, in the case of clauses (C) and (D) above, with respect to any such Debt of the Issuer, any Guarantor that is an Issuer Restricted Subsidiary or any Loan Proceeds Note Guarantor that is an Issuer Restricted Subsidiary, the payment obligation with respect to such Debt is expressly subordinated in any bankruptcy, liquidation or winding up proceeding of the obligor to the prior payment in full in cash of all obligations with respect to the Securities or the Loan Proceeds Note Guarantee of such Loan Proceeds Note Guarantor, respectively;
(v) Debt Incurred by a Person prior to the time (A) such Person became an Issuer Restricted Subsidiary, (B) such Person merges into or consolidates with an Issuer Restricted Subsidiary or (C) an Issuer Restricted Subsidiary merges into or consolidates with such Person (in a transaction in which such Person becomes an Issuer Restricted Subsidiary), and Debt Incurred to finance any such transaction; provided, however, that after giving effect to the Incurrence of any Debt pursuant to this clause (v), either (1) the Issuer could Incur at least $1.00 of additional Debt pursuant to paragraph (a) of this Section 908 computed using “6.0 to 1.0” rather than “5.75 to 1.0” as it appears therein or (2) the ratio computed pursuant to paragraph (a) of this Section 908 would be no higher than before giving effect to the Incurrence of such Debt;
(vi) Debt of the Issuer or any Issuer Restricted Subsidiary Incurred to renew, extend, refinance, defease, repay, prepay, repurchase, redeem, retire, exchange or refund (each, a “refinancing”) Debt of the Issuer or any Issuer Restricted Subsidiary Incurred pursuant to paragraph (a) of this Xxxxxxx 000 xx xxxxxx (x), (xx), (xxx), (x), (xx), (x) or (xi) of this paragraph (b) or this clause (vi), in an aggregate principal amount (or if issued at a discount, the then-Accreted Value) not to exceed the aggregate principal amount (or if issued at a discount, the then-Accreted Value) of and accrued interest on the Debt so refinanced plus any Additional Refinancing Amount; provided, however, that (A) if the Person that originally Incurred the Debt to be refinanced became, or would have been required to become if not already, a Guarantor or a Loan Proceeds Note Guarantor as a result of the Incurrence of the Debt being refinanced in accordance with this covenant, (1) the Person that Incurs the refinancing Debt pursuant to this clause (vi) (if not the Issuer) shall be a Guarantor or a Loan Proceeds Note Guarantor, as applicable, and (2) if the Debt to be refinanced is subordinated to the Loan Proceeds Note Guarantee of such Loan Proceeds Note Guarantor, the refinancing Debt shall be subordinated to the same extent to the Loan Proceeds Note Guarantee of the Loan Proceeds Note Guarantor Incurring such refinancing Debt, (B) the refinancing Debt of the Issuer or any Guarantor shall not be senior in right of payment to the Debt that is being refinanced and (C) in the case of any refinancing of Debt Incurred pursuant to paragraph (a) of this Section 908 or clause (i), (v), (ix), (x) or (xi) or, if such Debt previously refinanced Debt Incurred pursuant to any such clause, this clause (vi), the refinancing Debt by its terms, or by the terms of any agreement or instrument pursuant to which such Debt is issued, (x) does not provide for payments of principal of such Debt at stated maturity or by way of a sinking fund applicable thereto or by way of any mandatory redemption, defeasance, retirement or repurchase thereof by the Issuer or any Issuer Restricted Subsidiary (including any redemption, retirement or repurchase which is contingent upon events or circumstances, but excluding any retirement required by virtue of the acceleration of any payment with respect to such Debt upon any event of default thereunder), in each case prior to earlier of the time the same are required by the terms of the Debt being refinanced and the maturity date of the Securities and (y) does not permit redemption or other retirement (including pursuant to an offer to purchase made by the Issuer or an Issuer Restricted Subsidiary) of such Debt at the option of the holder thereof prior to the earlier of the time the same are required by the terms of the Debt being refinanced and the maturity date of the Securities, other than, in the case of clause (x) or (y), (1) any such payment, redemption or other retirement (including pursuant to an offer to purchase made by the Issuer) which is conditioned upon a change of control or upon an asset sale and (2) any Debt in an aggregate principal amount not in excess of the Maturity Limitation Excluded Amount;
(vii) Debt of the Issuer or any Issuer Restricted Subsidiary (A) in respect of performance, surety or appeal bonds, Guarantees, letters of credit or reimbursement obligations Incurred or provided in the ordinary course of business securing the performance of contractual, franchise, lease, self-insurance or license obligations and not in connection with the Incurrence of Debt, (B) in respect of customary agreements providing for indemnification, adjustment of purchase price after closing, or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any such obligations of the Issuer or any Issuer Restricted Subsidiary pursuant to such agreements, Incurred in connection with the disposition of any business, assets or Issuer Restricted Subsidiary (other than Guarantees of Debt Incurred by any Person acquiring all or any portion of such business, assets or Issuer Restricted Subsidiary for the purpose of financing such acquisition) and in an aggregate principal amount not to exceed the gross proceeds actually received by the Issuer or any Issuer Restricted Subsidiary in connection with such disposition, (C) consisting of the financing of insurance premiums in the ordinary course of business, (D) consisting of take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business or (E) 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; provided that such Debt is extinguished promptly upon the Issuer or such Issuer Restricted Subsidiary’s obtaining knowledge of its occurrence;
(viii) Debt of the Issuer or any Issuer Restricted Subsidiary consisting of Permitted Hedging Agreements;
(1) Debt of any Foreign Restricted Subsidiary that is an Issuer Restricted Subsidiary or (2) Debt incurred on behalf of, or representing Guarantees of Debt of, Joint Ventures of the Issuer or any Issuer Restricted Subsidiary, not otherwise permitted to be Incurred pursuant to paragraph (a) of this Section 908 or clauses (i) through (viii) above or clause (x) below, which, together with any other Super Senior Secured Notes remain outstanding Debt Incurred pursuant to this clause (ix) and the amount of all refinancing Debt outstanding or available pursuant to clause (vi) above in respect of Debt previously Incurred pursuant to this clause (ix) (other than any Additional Refinancing Amount), has an aggregate principal amount not to exceed the greater of (A) $300,000,000 and (B) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available;
(a) Issue Date Purchase Money Debt initially Incurred by the Issuer or any Issuer Restricted Subsidiary or another Person that became an Issuer Restricted Subsidiary on or before the Issue Date and (b) additional Purchase Money Debt Incurred by the Issuer or any Issuer Restricted Subsidiary; provided that, in the case of this clause (b), the amount of such Purchase Money Debt (together with the amount of all refinancing Debt outstanding or available pursuant to clause (vi) above in respect of such Purchase Money Debt (other than any Additional Refinancing Amount)) does not exceed 100% of the cost of the construction, installation, acquisition, lease, development or improvement of the applicable assets acquired; and
(xi) Debt under the Existing Notes issued prior to the Issue Date.
(c) Notwithstanding any other provision of this Section 908, (A) the maximum amount of Debt the Issuer or any Issuer Restricted Subsidiary may Incur pursuant to this Section 908 shall not be deemed to be exceeded due solely to the result of fluctuations in the exchange rates of currencies and (B) accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Debt in the form of additional Debt with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock shall not be deemed to be an incurrence of Debt for purposes of this covenant.
(d) For purposes of determining any particular amount of Debt under this Section 908, (1) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (2) any Liens granted for the benefit of the Securities pursuant to the provisions of Section 910 shall not be treated as Debt. For purposes of determining compliance with this Section 908, (1) any Debt outstanding under the Existing Issuer Credit Facility will be treated as Incurred on the Issue Date pursuant to clause (ii) of paragraph (b) of this Section 908 and (2) in the event that an item of Debt meets the criteria of more than one of the types of Debt described in the above clauses, the Issuer, in its sole discretion, may divide and classify (and, subject to clause (1) above, may later reclassify) such item of Debt and only be required to include the amount and type of such Debt in one of such clauses. When classifying multiple Incurrences of Debt on the same day, the Issuer may, in its sole discretion, specify the order of Incurrence of such Debt and need only give pro forma effect to the specified Incurrence (and any prior Incurrence) for purposes of classifying such specified Incurrence.
Appears in 1 contract
Samples: Indenture
Limitation on Debt. (a) The Issuer may Parent Guarantor shall not, and may shall not permit any Issuer Restricted Subsidiary Group Member to, directly or indirectly, Incur create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, "incur") any Debt (including Acquired Debt); provided, however, that (i) the Issuer or (ii) and any Issuer Restricted Subsidiary that is a Guarantor and a Loan Proceeds Note Guarantor may incur any Debt ifif at the time of such incurrence, the Fixed Charge Coverage Ratio for the Parent Guarantor's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the incurrence of such Debt, taken as one period, would be greater than 2.25 to 1.00, determined on a pro forma basis after giving pro forma effect to the incurrence of such Incurrence Debt and the receipt and application of the net proceeds thereof, no Default or Event of Default would occur as a consequence of such Incurrence or be continuing following such Incurrence and the Issuer Debt Ratio would be less than 5.75 to 1.0therefrom.
(b) Notwithstanding The foregoing paragraph shall not, however, prohibit the foregoing limitation, the Issuer or incurrence of any Issuer Restricted Subsidiary may Incur any and all of the following items of Debt (each of which shall be given independent effectcollectively "Permitted Debt"):
(i) Debt of the incurrence by the Issuer or any Issuer Restricted Subsidiary Guarantor under Credit Facilities of:
(A) Debt represented by the Notes, that together with any Additional Notes (but excluding, for the avoidance of doubt, any PIK Interest), amount to an aggregate principal amount at any one time outstanding not to exceed €481,959,000; and
(B) Debt under the Securities issued on the Issue Date, any Note Guarantee Surety Bonds Facilities and obligations in respect of the Securities issued on the Issue Date, the Loan Proceeds Note amended and restated letters of credit in connection with the Securities issued on the Issue Date or an aggregate principal amount at any Loan Proceeds Note Guarantee in respect of the Loan Proceeds Noteone time outstanding not to exceed €50.0 million;
(ii) the Existing Notes (other than any additional notes but including any PIK notes issued in respect of PIK interest paid on the Existing Notes);
(iii) the incurrence since the Issue Date by the Parent Guarantor or any Restricted Group Member of Debt, and any Permitted Refinancing Debt of the Issuer any Restricted Group Member incurred to renew, refund, refinance, replace, defease or discharge any Issuer Restricted Subsidiary under Credit Facilities Debt incurred pursuant to this clause (iii), in an aggregate principal amount at any time outstanding or available (together with not to exceed €150.0 million; provided that the aggregate amount of (x) outstanding Securities issued on the Issue Date and (y) all refinancing Debt outstanding or available pursuant to clause (vi) below in respect of the Securities issued on the Issue Date and Debt previously Incurred that may be incurred pursuant to this clause (iiiii) (other than any Additional Refinancing Amount)) by Restricted Group Members that are not the Issuer or a Guarantor shall not exceed €125.0 million at any one time not to exceed the greater of (x) $5.011 billion outstanding; and (y) 4.0 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries provided further that €45.0 million shall only be available for the four full fiscal quarters immediately preceding the Incurrence incurrence of such Debt for which purposes relating to the consolidated financial statements required to be delivered under Section 905 are available;
(iii) Debt renewal of the Issuer or any Issuer Restricted Subsidiary outstanding on the Measurement Date;licenses.
(iv) Debt owed the incurrence by (A) the Issuer to any Issuer Restricted Subsidiary, (B) any Issuer Restricted Subsidiary to the Issuer Parent Guarantor or any Restricted Group Member of Permitted Refinancing Debt in exchange for, or the net proceeds of which are used to refund, refinance or replace Debt (other Issuer than intercompany Debt between the Parent Guarantor and any Restricted Subsidiary, provided Group Member or between any Restricted Group Members) that in each case of clause was permitted to be incurred under Section 4.06(a) hereof or clauses (A) and (Bii), (xiv) upon the transfer, conveyance or other disposition by such Issuer Restricted Subsidiary or the Issuer of any Debt so permitted to a Person other than the Issuer or another Issuer Restricted Subsidiary or (yxii) if for any reason such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, of this Section 4.06(b);
(v) the provisions of clause (A) or clause (B), as applicable, shall no longer be applicable to such Debt and such Debt shall be deemed to have been Incurred incurrence by the issuer thereof at the time of such transfer, conveyance or other disposition or when such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, (C) the Issuer Parent Guarantor or any Issuer Restricted Subsidiary to Level 3 Group Member of intercompany Debt between the Parent in an aggregate principal amount, in the case of this clause (C), not in excess of the greater of (x) $300,000,000 Guarantor and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer any Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available at Group Member or between any time outstandingRestricted Group Members; provided, however, that Level 3 Parent that:
(A) if a Subsidiary Guarantor is a Guarantor; or (D) the obligor on such Debt and the creditor is not the Issuer or any Issuer Restricted Subsidiary to any member of the CenturyLink Credit Group in an aggregate principal amounta Guarantor, in the case of this clause (D), not in excess of the greater of (x) $300,000,000 and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to must be delivered under this Indenture are available at any time outstanding; provided that, in the case of clauses (C) unsecured and (D) above, with respect to any such Debt of the Issuer, any Guarantor that is an Issuer Restricted Subsidiary or any Loan Proceeds Note Guarantor that is an Issuer Restricted Subsidiary, the payment obligation with respect to such Debt is expressly subordinated in any bankruptcy, liquidation or winding up proceeding of the obligor to the prior payment in full in cash of all obligations of its Obligations with respect to its Subsidiary Guarantee;
(B) if the Issuer is the obligor on such Debt and the creditor is not a Guarantor, such Debt must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Securities or the Loan Proceeds Note Guarantee of such Loan Proceeds Note Guarantor, respectivelyNotes;
(vC) (i) any subsequent issuance or transfer of Equity Interests that results in any such Debt Incurred being held by a Person prior other than the Parent Guarantor or a Restricted Group Member and (ii) any sale or other transfer of any such Debt to a Person that is not either the time Parent Guarantor or a Restricted Group Member shall be deemed, in each case, to constitute an incurrence of such Debt by the Parent Guarantor or such Restricted Group Member, as the case may be, that was not permitted by this clause (Av); and
(D) The Parent Guarantor may not distribute, lend or otherwise advance, either directly or through an intermediary bank or institution, funds to any Restricted Group Member other than New Luxco;
(vi) the incurrence by the Parent Guarantor or any Restricted Group Member of Hedging Obligations entered into in the ordinary course of business and not for speculative purposes;
(vii) the guarantee by the Issuer or a Guarantor of Debt of a Restricted Group Member or by a Restricted Group Member that is not a Guarantor of Debt of another Restricted Group Member that is not a Guarantor, in each case that was permitted to be incurred by another provision of this Section 4.06;
(viii) the incurrence of Debt by the Parent Guarantor or any Restricted Group Member arising from (i) overdrafts and related liabilities arising from banking, treasury, depositary or cash management services or in connection with any automated clearinghouse transfer of funds, in each case incurred in the ordinary course of business; provided that such Person became an Issuer Restricted SubsidiaryDebt is extinguished within ten Business Days of incurrence, (Bii) such Person merges into performance, surety, judgment, appeal or consolidates with an Issuer Restricted Subsidiary or similar bonds (C) an Issuer Restricted Subsidiary merges into or consolidates with such Person (in a transaction in which such Person becomes an Issuer Restricted Subsidiaryincluding under the Surety Bonds Facility), instruments or obligations in the ordinary course of business and, in each case, not in connection with the borrowing of or obtaining of advances of credit, (iii) completion guarantees provided or letters of credit obtained by the Parent Guarantor or any Restricted Group Member in the ordinary course of business, in each case, not in connection with the borrowing of or obtaining of advances of credit
(ix) the incurrence by the Parent Guarantor or any Restricted Group Member (other than the Issuer) of Debt to suppliers, lessors, licensees, government authorities, contractors, franchisees or customers incurred in the ordinary course of business;
(x) the incurrence by the Parent Guarantor or any Restricted Group Member (other than the Issuer) of Debt 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;
(xi) the incurrence by the Parent Guarantor or any Restricted Group Member (other than the Issuer) of Debt Incurred under Capital Lease Obligations or Purchase Money Obligations, and in each case any Permitted Refinancing Debt of any Restricted Group Member incurred to finance renew, refund, refinance, replace, defease or discharge any such transactionDebt incurred pursuant to this clause (xi) in an aggregate principal amount at any time outstanding not to exceed the greater of €25.0 million and 2.00% of Consolidated Total Assets;
(xii) Debt of Persons that are acquired by the Issuer or any Guarantor or merged, consolidated, amalgamated, or otherwise combined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Issuer or any Guarantor in accordance with the terms of the Indenture; provided, however, provided that after giving effect to such acquisition, merger, consolidation, amalgamation or other combination, the Incurrence of any Debt pursuant Parent Guarantor would be permitted to this clause (v), either (1) the Issuer could Incur incur at least $€1.00 of additional Debt pursuant to paragraph (a) the Fixed Charge Coverage Ratio test set forth in the first sentence of this Section 908 computed using “6.0 to 1.0” rather than “5.75 to 1.0” as it appears therein or (2) the ratio computed pursuant to paragraph (a) of this Section 908 would be no higher than before giving effect to the Incurrence of such Debtcovenant;
(vixiii) Debt of The incurrence by the Issuer or any Issuer Restricted Subsidiary Incurred to renew, extend, refinance, defease, repay, prepay, repurchase, redeem, retire, exchange or refund (each, a “refinancing”) Guarantor of Debt of the Issuer or any Issuer Restricted Subsidiary Incurred pursuant to paragraph (a) of this Xxxxxxx 000 xx xxxxxx (x), (xx), (xxx), (x), (xx), (x) or (xi) of this paragraph (b) or this clause (vi), in an aggregate principal amount (or if issued at a discount, the then-Accreted Value) any time outstanding not to exceed the greater of €75.0 million and 5.75% of Consolidated Total Assets for the purpose of acquiring the minority interest in XXXXX;
(xiv) the incurrence by the Parent Guarantor or any Restricted Group Member of Debt in an aggregate principal amount (at any time outstanding, and any Permitted Refinancing Debt incurred to refund, refinance or if issued at a discount, the then-Accreted Value) of and accrued interest on the replace any Debt so refinanced plus any Additional Refinancing Amount; provided, however, that (A) if the Person that originally Incurred the Debt to be refinanced became, or would have been required to become if not already, a Guarantor or a Loan Proceeds Note Guarantor as a result of the Incurrence of the Debt being refinanced in accordance with this covenant, (1) the Person that Incurs the refinancing Debt incurred by them pursuant to this clause (vixiv), not to exceed the greater of €25.0 million and 2.00% of Consolidated Total Assets;
(xv) [Reserved];
(if not xvi) the Issuer) shall be a incurrence by the Parent Guarantor or a Loan Proceeds Note Guarantorany Restricted Group Member of Debt in the form of guarantees of loans and advances and reimbursements owed to officers, as applicabledirectors, consultants and employees, in the ordinary course of business;
(2xvii) if the incurrence by the Parent Guarantor or any Restricted Group Member of Debt to be refinanced is subordinated to the Loan Proceeds Note Guarantee consisting solely of such Loan Proceeds Note Guarantor, the refinancing Debt shall be subordinated to the same extent to the Loan Proceeds Note Guarantee Liens granted in reliance on clause (14) or (17) of the Loan Proceeds Note Guarantor Incurring such refinancing Debt, definition of "Permitted Liens";
(Bxviii) the refinancing incurrence by the Parent Guarantor or any Restricted Group Member of Debt in the form of purchase price adjustments, earnouts, indemnification obligations, non-competition agreements or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any acquisition or disposition; and
(xix) the incurrence by the Issuer or any Guarantor shall not be senior in right of payment to the Debt that is being refinanced and (C) in the case of any refinancing of Debt Incurred pursuant to paragraph (a) of this Section 908 or clause (i), (v), (ix), (x) or (xi) or, if such Debt previously refinanced Debt Incurred pursuant to any such clause, this clause (vi), the refinancing Debt by its terms, or by the terms of any agreement or instrument pursuant to which such Debt is issued, (x) does not provide for payments of principal of such Debt at stated maturity or by way of a sinking fund applicable thereto or by way of any mandatory redemption, defeasance, retirement or repurchase thereof by the Issuer or any Issuer Restricted Subsidiary (including any redemption, retirement or repurchase which is contingent upon events or circumstances, but excluding any retirement required by virtue of the acceleration of any payment with respect to such Debt upon any event of default thereunder), in each case prior to earlier of the time the same are required by the terms of the Debt being refinanced and the maturity date of the Securities and (y) does not permit redemption or other retirement (including pursuant to an offer to purchase made by the Issuer or an Issuer Restricted Subsidiary) of such Debt at the option of the holder thereof prior to the earlier of the time the same are required by the terms of the Debt being refinanced and the maturity date of the Securities, other than, in the case of clause (x) or (y), (1) any such payment, redemption or other retirement (including pursuant to an offer to purchase made by the Issuer) which is conditioned upon a change of control or upon an asset sale and (2) any Debt in an aggregate principal amount not in excess greater than the aggregate amount of net cash proceeds (other than Excluded Contributions) received by the Maturity Limitation Excluded Amount;
(vii) Debt of Parent Guarantor after the Issuer or any Issuer Restricted Subsidiary (A) in respect of performance, surety or appeal bonds, Guarantees, letters of credit or reimbursement obligations Incurred or provided in the ordinary course of business securing the performance of contractual, franchise, lease, self-insurance or license obligations and not in connection with the Incurrence of Debt, (B) in respect of customary agreements providing for indemnification, adjustment of purchase price after closing, or similar obligationsIssue Date as a contribution to its common equity capital, or from Guarantees the issue or letters sale of credit, surety bonds or performance bonds securing any such obligations of the Issuer or any Issuer Restricted Subsidiary pursuant to such agreements, Incurred in connection with the disposition of any business, assets or Issuer Restricted Subsidiary its Equity Interests (other than Guarantees of Debt Incurred by Disqualified Stock) at any Person acquiring all or any portion of time outstanding to the extent such business, assets or Issuer cash proceeds have not been relied upon to make Restricted Subsidiary for the purpose of financing such acquisition) and in an aggregate principal amount not to exceed the gross proceeds actually received by the Issuer or any Issuer Restricted Subsidiary in connection with such disposition, (C) consisting of the financing of insurance premiums in the ordinary course of business, (D) consisting of take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business or (E) 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; provided that such Debt is extinguished promptly upon the Issuer or such Issuer Restricted Subsidiary’s obtaining knowledge of its occurrence;
(viii) Debt of the Issuer or any Issuer Restricted Subsidiary consisting of Permitted Hedging Agreements;
(1) Debt of any Foreign Restricted Subsidiary that is an Issuer Restricted Subsidiary or (2) Debt incurred on behalf of, or representing Guarantees of Debt of, Joint Ventures of the Issuer or any Issuer Restricted Subsidiary, not otherwise permitted to be Incurred pursuant to paragraph (a) of this Section 908 or clauses (i) through (viii) above or clause (x) below, which, together with any other outstanding Debt Incurred pursuant to this clause (ix) and the amount of all refinancing Debt outstanding or available Payments pursuant to clause (vib)(iii)(B) above in respect of Debt previously Incurred pursuant to this clause (ix) (other than any Additional Refinancing Amount), has an aggregate principal amount not to exceed the greater of (A) $300,000,000 and (B) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available4.07;
(a) Issue Date Purchase Money Debt initially Incurred by the Issuer or any Issuer Restricted Subsidiary or another Person that became an Issuer Restricted Subsidiary on or before the Issue Date and (b) additional Purchase Money Debt Incurred by the Issuer or any Issuer Restricted Subsidiary; provided that, in the case of this clause (b), the amount of such Purchase Money Debt (together with the amount of all refinancing Debt outstanding or available pursuant to clause (vi) above in respect of such Purchase Money Debt (other than any Additional Refinancing Amount)) does not exceed 100% of the cost of the construction, installation, acquisition, lease, development or improvement of the applicable assets acquired; and
(xi) Debt under the Existing Notes issued prior to the Issue Date.
(c) Notwithstanding Neither the Parent Guarantor nor any Restricted Group Member shall incur (i) debt or other provision of this Section 908, obligations under any Credit Facility that is secured by Liens on the Collateral or
(Ad) the maximum amount of Debt the Issuer or any Issuer Restricted Subsidiary may Incur pursuant to this Section 908 shall not be deemed to be exceeded due solely to the result of fluctuations in the exchange rates of currencies and (B) The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Debt in the form of additional Debt with the same termsterms (including, for the avoidance of doubt, PIK Interest), and the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of the same class of Disqualified Stock shall or Preferred Stock, as the case may be, will not be deemed to be an incurrence of Debt or an issuance of Disqualified Stock or Preferred Stock, as the case may be, for purposes of this covenant; provided, in each such case, that the amount thereof is included in Fixed Charges of the Parent Guarantor as accrued or paid.
(de) For purposes of determining any particular amount of Debt under this Section 908, (1) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (2) any Liens granted for the benefit of the Securities pursuant to the provisions of Section 910 shall not be treated as Debt. For purposes of determining compliance with this Section 9084.06, (1) the outstanding principal amount of any Debt outstanding particular Debt, including any obligations arising under the Existing Issuer Credit Facility will any related guarantee, Lien, letter of credit or similar instrument, shall be treated as Incurred on the Issue Date pursuant to clause (ii) of paragraph (b) of this Section 908 counted only once, and (2) in the event that an item of proposed Debt meets the criteria of more than one of the types categories of Permitted Debt described in the above clauses, the Issuer, in its sole discretion, may divide and classify clauses (and, subject to clause i) through (1xix) above, may later reclassify) or is entitled to be incurred under Section 4.06(a), the Parent Guarantor shall be permitted to classify such item of Debt on the date of its incurrence, or later reclassify all or a portion of such item of Debt, in any manner that complies with this Section 4.06, and shall only be required to include the amount and type of such Debt in one of such clauses. When classifying multiple Incurrences clauses and shall be entitled to divide and classify an item of Debt in more than one of the types of Debt described in this Section 4.06; provided that Existing Debt will be deemed incurred pursuant to Section 4.06(b)(iii), Debt under Capital Lease Obligations in existence on the same daydate of this Indenture will be deemed incurred pursuant to Section 4.06(b)(xi); all Debt represented by the Notes will be deemed incurred pursuant to Section 4.06(b)(i)(A), all Debt represented by the Issuer maySurety Bonds Facilities will be deemed incurred pursuant to Section 4.06(b)(i)(B) and all Debt represented by the Existing Notes will be deemed incurred pursuant to Section 4.06(b)(ii); provided further that Debt under the Notes or otherwise incurred pursuant to clauses (i), in its sole discretion(ii) and (iii) of Section 4.06(b) may not be reclassified.
(f) Notwithstanding Section 4.06(a) and Section 4.06(b), specify neither the order of Incurrence of such Parent Guarantor nor any Restricted Group Member may incur Debt and need only give pro forma effect or any other liabilities to any Parent Entity, other than the specified Incurrence (and any prior Incurrence) for purposes of classifying such specified IncurrenceParent Guarantor may incur Subordinated Shareholder Funding.
Appears in 1 contract
Samples: Indenture
Limitation on Debt. No Borrower or Subsidiary of a Borrower shall incur any Debt, except (a) The Issuer the Credit Facilities (including the Letters of Credit); (b) the Residential Capital Markets Group or an Excluded Subsidiary may nothave liability under unsecured Interest and Foreign Exchange Hedge Agreements in an aggregate notional amount not to exceed $500,000,000, and may not permit any Issuer Restricted Subsidiary to, directly or indirectly, Incur any Debt; provided, however, that so long as (i) there is no recourse to AMRESCO or any Subsidiary under any such Interest and Foreign Exchange Hedge Agreements, other than the Issuer Residential Capital Markets Group or an Excluded Subsidiary, (ii) any Issuer Restricted Subsidiary that is each such Interest and Foreign Exchange Hedge Agreement has a Guarantor maturity of no more than 18 months, other than Interest and a Loan Proceeds Note Guarantor may incur any Debt if, after giving pro forma effect to such Incurrence and the receipt and application of the net proceeds thereof, no Default or Event of Default would occur as a consequence of such Incurrence or be continuing following such Incurrence and the Issuer Debt Ratio would be less than 5.75 to 1.0.
(b) Notwithstanding the foregoing limitation, the Issuer or any Issuer Restricted Subsidiary may Incur any and all of the following (each of which shall be given independent effect):
(i) Debt of the Issuer or any Issuer Restricted Subsidiary under the Securities issued on the Issue Date, any Note Guarantee in respect of the Securities issued on the Issue Date, the Loan Proceeds Note amended and restated in connection with the Securities issued on the Issue Date or any Loan Proceeds Note Guarantee in respect of the Loan Proceeds Note;
(ii) Debt of the Issuer or any Issuer Restricted Subsidiary under Credit Facilities Foreign Exchange Hedge Agreements in an aggregate principal notional amount outstanding or available (together with the amount of (x) outstanding Securities issued on the Issue Date and (y) all refinancing Debt outstanding or available pursuant to clause (vi) below in respect of the Securities issued on the Issue Date and Debt previously Incurred pursuant to this clause (ii) (other than any Additional Refinancing Amount)) at any one time not to exceed the greater $100,000,000, which can have a maturity of (x) $5.011 billion and (y) 4.0 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available;
no more than seven years, (iii) Debt the purpose of each such Interest and Foreign Exchange Hedge Agreement is to hedge the Issuer Borrowers' interest rate or any Issuer Restricted Subsidiary outstanding on the Measurement Date;
foreign exchange or other business risk, and is not speculative in nature, and (iv) Debt owed the Borrowers do not deviate from their current practices and policies related to obtaining Interest and Foreign Exchange Hedge Agreements; (c) obligations under secured Interest and Foreign Exchange Hedge Agreements, so long as the provider of any such Interest and Foreign Exchange Hedge Agreements is a Lender and such Lender's Liens are evidenced by the Security Documents securing the Credit Facilities; (Ad) the Issuer to any Issuer Restricted Subsidiary, (B) any Issuer Restricted Subsidiary to the Issuer or any other Issuer Restricted Subsidiary, provided that in each case Investment Line of clause (A) Credit and (B), (x) upon the transfer, conveyance or other disposition by such Issuer Restricted Subsidiary or the Issuer of any Debt so permitted to a Person other than the Issuer or another Issuer Restricted Subsidiary or (y) if for any reason such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, the provisions of clause (A) or clause (B), as applicable, shall no longer be applicable to such Debt and such Debt shall be deemed to have been Incurred by the issuer thereof at the time of such transfer, conveyance or other disposition or when such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, (C) the Issuer or any Issuer Restricted Subsidiary to Level 3 Parent in an aggregate principal amount, in the case of this clause (C), not in excess of the greater of (x) $300,000,000 and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available at any time outstanding; provided, however, that Level 3 Parent is a Guarantor; or (D) the Issuer or any Issuer Restricted Subsidiary to any member of the CenturyLink Credit Group in an aggregate principal amount, in the case of this clause (D), not in excess of the greater of (x) $300,000,000 and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under this Indenture are available at any time outstanding; provided that, in the case of clauses (C) and (D) above, with respect to any such Debt of the Issuer, any Guarantor that is an Issuer Restricted Subsidiary or any Loan Proceeds Note Guarantor that is an Issuer Restricted Subsidiary, the payment obligation with respect to such Debt is expressly subordinated in any bankruptcy, liquidation or winding up proceeding of the obligor to the prior payment in full in cash of all obligations with respect to the Securities or the Loan Proceeds Note Guarantee of such Loan Proceeds Note Guarantor, respectively;
(v) Debt Incurred by a Person prior to the time (A) such Person became an Issuer Restricted Subsidiary, (B) such Person merges into or consolidates with an Issuer Restricted Subsidiary or (C) an Issuer Restricted Subsidiary merges into or consolidates with such Person (in a transaction in which such Person becomes an Issuer Restricted Subsidiary), and Debt Incurred to finance any such transaction; provided, however, that after giving effect to the Incurrence of any Debt pursuant to this clause (v), either (1) the Issuer could Incur at least $1.00 of additional Debt pursuant to paragraph (a) of this Section 908 computed using “6.0 to 1.0” rather than “5.75 to 1.0” as it appears therein or (2) the ratio computed pursuant to paragraph (a) of this Section 908 would be no higher than before giving effect to the Incurrence of such Debt;
(vi) Debt of the Issuer or any Issuer Restricted Subsidiary Incurred to renew, extend, refinance, defease, repay, prepay, repurchase, redeem, retire, exchange or refund (each, a “refinancing”) Debt of the Issuer or any Issuer Restricted Subsidiary Incurred pursuant to paragraph (a) of this Xxxxxxx 000 xx xxxxxx (x), (xx), (xxx), (x), (xx), (x) or (xi) of this paragraph (b) or this clause (vi), in an aggregate principal amount (or if issued at a discount, the then-Accreted Value) not to exceed the aggregate principal amount (or if issued at a discount, the then-Accreted Value) of and accrued interest on the Debt so refinanced plus any Additional Refinancing Amount; provided, however, that (A) if the Person that originally Incurred the Debt to be refinanced became, or would have been required to become if not already, a Guarantor or a Loan Proceeds Note Guarantor as a result of the Incurrence of the Debt being refinanced in accordance with this covenant, (1) the Person that Incurs the refinancing Debt pursuant to this clause (vi) (if not the Issuer) shall be a Guarantor or a Loan Proceeds Note Guarantor, as applicable, and (2) if the Debt to be refinanced is subordinated to the Loan Proceeds Note Guarantee of such Loan Proceeds Note Guarantor, the refinancing Debt shall be subordinated to the same extent to the Loan Proceeds Note Guarantee of the Loan Proceeds Note Guarantor Incurring such refinancing Debt, (B) the refinancing Debt of the Issuer or any Guarantor shall not be senior in right of payment to the Debt that is being refinanced and (C) in the case of any refinancing of Debt Incurred pursuant to paragraph (a) of this Section 908 or clause (i), (v), (ix), (x) or (xi) or, if such Debt previously refinanced Debt Incurred pursuant to any such clause, this clause (vi), the refinancing Debt by its terms, or by the terms of any agreement or instrument pursuant to which such Debt is issued, (x) does not provide for payments of principal of such Debt at stated maturity or by way of a sinking fund applicable thereto or by way of any mandatory redemption, defeasance, retirement or repurchase thereof by the Issuer or any Issuer Restricted Subsidiary (including any redemption, retirement or repurchase which is contingent upon events or circumstances, but excluding any retirement required by virtue of the acceleration of any payment with respect to such Debt upon any event of default thereunder), in each case prior to earlier of the time the same are required by the terms of the Debt being refinanced and the maturity date of the Securities and (y) does not permit redemption or other retirement (including pursuant to an offer to purchase made by the Issuer or an Issuer Restricted Subsidiary) of such Debt at the option of the holder thereof prior to the earlier of the time the same are required by the terms of the Debt being refinanced and the maturity date of the Securities, other than, in the case of clause (x) or (y), (1) any such payment, redemption or other retirement (including pursuant to an offer to purchase made by the Issuer) which is conditioned upon a change of control or upon an asset sale and (2) any Debt in an aggregate principal amount outstanding not in excess of the Maturity Limitation Excluded Amount;
to exceed One Billion Five Hundred Million and No/100 Dollars (vii$1,500,000,000); (e) Debt of any Borrower to any other Borrower; (f) Debt secured by purchase money security interests not to exceed $250,000.00 in the Issuer aggregate at any time; (g) Guaranties in connection with Debt otherwise permitted in this Section 8.5 except where such guaranties are specifically prohibited by this Agreement; (h) Guaranties in the form of indemnity obligations or typical repurchase obligations related to the sale by any Issuer Restricted Subsidiary (A) in respect Borrower of performance, surety or appeal bonds, Guarantees, letters of credit or reimbursement obligations Incurred or provided assets in the ordinary course of business securing its business, including the performance securitization of contractualloans; and including, franchisewithout limitation, leaseindemnification, self-insurance or license contribution and repurchase obligations and not arising in connection with the Incurrence transactions contemplated by the ACMF Transaction Documents; (i) Leases of Debt, (B) in respect of customary agreements providing for indemnification, adjustment of purchase price after closing, or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any such obligations of the Issuer or any Issuer Restricted Subsidiary pursuant to such agreements, Incurred in connection with the disposition of any business, assets or Issuer Restricted Subsidiary (other than Guarantees of Debt Incurred office space and office equipment used by any Person acquiring all or any portion of such business, assets or Issuer Restricted Subsidiary for the purpose of financing such acquisition) and in an aggregate principal amount not to exceed the gross proceeds actually received by the Issuer or any Issuer Restricted Subsidiary in connection with such disposition, (C) consisting of the financing of insurance premiums Borrower in the ordinary course of its business, ; (Dj) consisting Debt in respect of take-or-pay obligations contained in supply arrangements, in each case, current accounts payable incurred in the ordinary course of business any Borrower's business; (k) Approved Subordinated Debt or (E) 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 courseApproved Senior Debt; provided that such Debt is extinguished promptly upon no Borrower or Subsidiary shall make payments on or redeem, or approve by board of director action or otherwise the Issuer or such Issuer Restricted Subsidiary’s obtaining knowledge of its occurrence;
(viii) Debt of the Issuer or any Issuer Restricted Subsidiary consisting of Permitted Hedging Agreements;
(1) Debt payment of any Foreign Restricted Subsidiary that is an Issuer Restricted Subsidiary amounts on, or (2) Debt incurred on behalf redemption of, the Approved Subordinated Debt or representing Guarantees Approved Senior Debt after the occurrence of Debt ofa Default or, Joint Ventures of the Issuer or any Issuer Restricted Subsidiary, not otherwise permitted to be Incurred pursuant to paragraph (a) of this Section 908 or clauses (i) through (viii) above or clause (x) below, which, together with any other outstanding Debt Incurred pursuant to this clause (ix) and the amount of all refinancing Debt outstanding or available pursuant to clause (vi) above in respect of Debt previously Incurred pursuant to this clause (ix) (other than any Additional Refinancing Amount), has an aggregate principal amount not to exceed the greater of (A) $300,000,000 and (B) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available;
(a) Issue Date Purchase Money Debt initially Incurred by the Issuer or any Issuer Restricted Subsidiary or another Person that became an Issuer Restricted Subsidiary on or before the Issue Date and (b) additional Purchase Money Debt Incurred by the Issuer or any Issuer Restricted Subsidiary; provided that, in the case of this clause (b), the amount of such Purchase Money Debt (together with the amount of all refinancing Debt outstanding or available pursuant to clause (vi) above in respect of such Purchase Money Debt (other than any Additional Refinancing Amount)) does not exceed 100% of the cost of the construction, installation, acquisition, lease, development or improvement of the applicable assets acquired; and
(xi) Debt under the Existing Notes issued prior to the Issue Date.
(c) Notwithstanding any other provision occurrence of this Section 908a Default, (A) which would exceed the maximum amount of Debt the Issuer or any Issuer Restricted Subsidiary may Incur pursuant to this Section 908 shall not be deemed to be exceeded scheduled payments due solely to the result of fluctuations in the exchange rates of currencies and (B) accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Debt in the form of additional Debt with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock shall not be deemed to be an incurrence of Debt for purposes of this covenant.
(d) For purposes of determining any particular amount of Debt under this Section 908, (1) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (2) any Liens granted for the benefit of the Securities pursuant to the provisions of Section 910 shall not be treated as Debt. For purposes of determining compliance with this Section 908, (1) any Debt outstanding under the Existing Issuer Credit Facility will be treated as Incurred on documents evidencing the Issue Date pursuant to clause (ii) of paragraph (b) of this Section 908 and (2) in Approved Subordinated Debt or the event that an item of Debt meets the criteria of more than one of the types of Debt described in the above clauses, the Issuer, in its sole discretion, may divide and classify (and, subject to clause (1) above, may later reclassify) such item of Debt and only be required to include the amount and type of such Debt in one of such clauses. When classifying multiple Incurrences of Debt on the same day, the Issuer may, in its sole discretion, specify the order of Incurrence of such Debt and need only give pro forma effect to the specified Incurrence (and any prior Incurrence) for purposes of classifying such specified Incurrence.Approved
Appears in 1 contract
Samples: Loan Agreement (Amresco Inc)
Limitation on Debt. (a) The Issuer may Guarantor shall not, and may shall not permit any Issuer Restricted Subsidiary of its Subsidiaries to directly or indirectly create, incur, issue, assume or otherwise become liable with respect to, directly extend the maturity of or indirectlybecome responsible for the payment of, Incur any Debt; provided, however, that (i) the Issuer or (ii) any Issuer Restricted Subsidiary that is a Guarantor and a Loan Proceeds Note Guarantor may incur any Debt if, after giving pro forma effect to such Incurrence and the receipt and application of the net proceeds thereof, no Default or Event of Default would occur as a consequence of such Incurrence or be continuing following such Incurrence and the Issuer Debt Ratio would be less than 5.75 to 1.0.
(b) Notwithstanding the foregoing limitation, the Issuer or any Issuer Restricted Subsidiary may Incur any and all of the following (each of which shall be given independent effect):other than:
(i) Debt of the Issuer or any Issuer Restricted Subsidiary under the Securities issued on the Issue Date, any Note Guarantee in respect of the Securities issued on the Issue Date, the Loan Proceeds Note amended and restated in connection with the Securities issued on the Issue Date or any Loan Proceeds Note Guarantee in respect of the Loan Proceeds NoteBasic Documents;
(ii) Debt of evidenced by (A) the Issuer or any Issuer Restricted Subsidiary under Credit Facilities Senior Secured Notes in an aggregate principal amount outstanding or available (together with the amount of (x) outstanding Securities issued on the Issue Date and (y) all refinancing Debt outstanding or available pursuant to clause (vi) below in respect of the Securities issued on the Issue Date and Debt previously Incurred pursuant to this clause (ii) (other than any Additional Refinancing Amount)) at any one time not to exceed the greater of (x) $5.011 billion 60,000,000 at any time and (yB) 4.0 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and PIK Notes (as defined in the Issuer Restricted Subsidiaries for Senior Secured Notes Indenture) to the four full fiscal quarters immediately preceding extent such PIK Notes represent interest accrued on the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are availableSenior Secured Notes at a rate no greater than 8% per annum;
(iii) Debt of the Issuer or Guarantor under a working capital facility in a principal amount not to exceed $25,000,000 at any Issuer Restricted Subsidiary outstanding on the Measurement Datetime;
(iv) Debt owed by (A) of the Issuer to any Issuer Restricted Subsidiary, (B) any Issuer Restricted Subsidiary to the Issuer Guarantor or any other Issuer Restricted Subsidiary, provided that in each case of clause (A) and (B), (x) upon the transfer, conveyance or other disposition by such Issuer Restricted Subsidiary or the Issuer its Subsidiaries under cash collateralized letters of any Debt so permitted credit not to a Person other than the Issuer or another Issuer Restricted Subsidiary or (y) if for any reason such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, the provisions of clause (A) or clause (B), as applicable, shall no longer be applicable to such Debt and such Debt shall be deemed to have been Incurred by the issuer thereof at the time of such transfer, conveyance or other disposition or when such Issuer Restricted Subsidiary ceases to be an Issuer Restricted Subsidiary, (C) the Issuer or any Issuer Restricted Subsidiary to Level 3 Parent in an aggregate principal amount, exceed $30,000,000 in the case of this clause (C), not in excess of the greater of (x) $300,000,000 and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available aggregate at any time outstanding; provided, however, that Level 3 Parent is a Guarantor; or (D) the Issuer or any Issuer Restricted Subsidiary to any member of the CenturyLink Credit Group in an aggregate principal amount, in the case of this clause (D), not in excess of the greater of (x) $300,000,000 and (y) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under this Indenture are available at any time outstanding; provided that, in the case of clauses (C) and (D) above, with respect to any such Debt of the Issuer, any Guarantor that is an Issuer Restricted Subsidiary or any Loan Proceeds Note Guarantor that is an Issuer Restricted Subsidiary, the payment obligation with respect to such Debt is expressly subordinated in any bankruptcy, liquidation or winding up proceeding of the obligor to the prior payment in full in cash of all obligations with respect to the Securities or the Loan Proceeds Note Guarantee of such Loan Proceeds Note Guarantor, respectivelytime;
(v) Debt Incurred of the Guarantor to any of its Subsidiaries or of a Subsidiary of the Guarantor to the Guarantor or to another Subsidiary of the Guarantor, but only to the extent that the proceeds of any such Debt incurred by a Person prior non-Wholly Owned Subsidiary of the Guarantor are used to make a Restricted Payment to, or an Investment in, the time (A) such Person became an Issuer Restricted Subsidiary, (B) such Person merges into Guarantor or consolidates with an Issuer Restricted a Wholly Owned Subsidiary or (C) an Issuer Restricted Subsidiary merges into or consolidates with such Person (in a transaction in which such Person becomes an Issuer Restricted Subsidiary), and Debt Incurred to finance any such transaction; provided, however, that after giving effect to of the Incurrence of any Debt pursuant to this clause (v), either (1) the Issuer could Incur at least $1.00 of additional Debt pursuant to paragraph (a) of this Section 908 computed using “6.0 to 1.0” rather than “5.75 to 1.0” as it appears therein or (2) the ratio computed pursuant to paragraph (a) of this Section 908 would be no higher than before giving effect to the Incurrence of such DebtGuarantor;
(vi) Debt of the Issuer Guarantor or any Issuer Restricted Subsidiary Incurred to renew, extend, refinance, defease, repay, prepay, repurchase, redeem, retire, exchange or refund (each, a “refinancing”) Debt of the Issuer or any Issuer Restricted Subsidiary Incurred pursuant to paragraph (a) of this Xxxxxxx 000 xx xxxxxx (x), (xx), (xxx), (x), (xx), (x) or (xi) of this paragraph (b) or this clause (vi), in an aggregate principal amount (or if issued at a discount, the then-Accreted Value) not to exceed the aggregate principal amount (or if issued at a discount, the then-Accreted Value) of its Subsidiaries under Currency Agreements and accrued interest on the Debt so refinanced plus any Additional Refinancing AmountInterest Rate Agreements; provided, however, that (A) if such Currency Agreements and Interest Rate Agreements do not increase the Person that originally Incurred outstanding Debt of the Debt to be refinanced became, or would have been required to become if not already, a Guarantor or a Loan Proceeds Note Guarantor other than as a result of the Incurrence of the Debt being refinanced fluctuations in accordance with this covenant, (1) the Person that Incurs the refinancing Debt pursuant to this clause (vi) (if not the Issuer) shall be a Guarantor or a Loan Proceeds Note Guarantor, as applicable, and (2) if the Debt to be refinanced is subordinated to the Loan Proceeds Note Guarantee of such Loan Proceeds Note Guarantor, the refinancing Debt shall be subordinated to the same extent to the Loan Proceeds Note Guarantee of the Loan Proceeds Note Guarantor Incurring such refinancing Debt, (B) the refinancing Debt of the Issuer or any Guarantor shall not be senior in right of payment to the Debt that is being refinanced and (C) in the case of any refinancing of Debt Incurred pursuant to paragraph (a) of this Section 908 or clause (i), (v), (ix), (x) or (xi) or, if such Debt previously refinanced Debt Incurred pursuant to any such clause, this clause (vi), the refinancing Debt by its terms, foreign currency exchange rates or by the terms reason of any agreement or instrument pursuant to which such Debt is issuedfees, (x) does not provide for payments of principal of such Debt at stated maturity or by way of a sinking fund applicable thereto or by way of any mandatory redemption, defeasance, retirement or repurchase thereof by the Issuer or any Issuer Restricted Subsidiary (including any redemption, retirement or repurchase which is contingent upon events or circumstances, but excluding any retirement required by virtue of the acceleration of any payment with respect to such Debt upon any event of default thereunder), in each case prior to earlier of the time the same are required by the terms of the Debt being refinanced indemnities and the maturity date of the Securities and (y) does not permit redemption or other retirement (including pursuant to an offer to purchase made by the Issuer or an Issuer Restricted Subsidiary) of such Debt at the option of the holder thereof prior to the earlier of the time the same are required by the terms of the Debt being refinanced and the maturity date of the Securities, other than, in the case of clause (x) or (y), (1) any such payment, redemption or other retirement (including pursuant to an offer to purchase made by the Issuer) which is conditioned upon a change of control or upon an asset sale and (2) any Debt in an aggregate principal amount not in excess of the Maturity Limitation Excluded Amount;compensation payable thereunder;1
(vii) Debt of the Issuer Guarantor or any Issuer Restricted Subsidiary (A) in respect of performance, surety or appeal bonds, Guarantees, letters of credit or reimbursement obligations Incurred or provided in the ordinary course of business securing the performance of contractual, franchise, lease, self-insurance or license obligations and not in connection with the Incurrence of Debt, (B) in respect of customary its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price after closing, or similar obligations, or from Guarantees guarantees or letters of credit, surety bonds or performance bonds securing any such obligations of the Issuer Guarantor or any Issuer Restricted Subsidiary pursuant to such agreementsof its Subsidiaries, Incurred in any case incurred or assumed in connection with the disposition of any business, assets Property or Issuer Restricted Subsidiary (of the Guarantor, other than Guarantees guarantees of Debt Incurred incurred by any Person acquiring all or any portion of such business, assets Property or Issuer Restricted Subsidiary for the purpose of financing such acquisition) and ; provided, however, that the maximum aggregate liability in an aggregate principal amount not respect of all such Debt in the nature of such ------------------------- 1 Additional language regarding Interest Rate Agreements to come from Viskase. guarantees shall at no time exceed the gross proceeds actually received by from the Issuer or any Issuer Restricted Subsidiary in connection with sale of such disposition, (C) consisting of the financing of insurance premiums in the ordinary course of business, (D) consisting of take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business Property or (E) 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; provided that such Debt is extinguished promptly upon the Issuer or such Issuer Restricted Subsidiary’s obtaining knowledge of its occurrence;
(viii) Debt of the Issuer Guarantor or any Issuer Restricted Subsidiary consisting of Permitted Hedging Agreementsits Subsidiaries (A) resulting from the endorsement of negotiable instruments for collection in the ordinary course of business, or (B) arising under guarantees incurred in the ordinary course of business with respect to suppliers, licensees, franchisees or customers of the Guarantor of such Subsidiary;
(1ix) Debt of the Guarantor or any Foreign Restricted of its Subsidiaries under letters of credit issued in the ordinary course of business (A) to finance the purchase of goods by the Guarantor or a Subsidiary that is an Issuer Restricted Subsidiary of the Guarantor or (2B) Debt incurred on behalf of, for the purpose of supporting performance or representing Guarantees of Debt of, Joint Ventures surety bonds or obligations of the Issuer Guarantor or any Issuer Restricted Subsidiaryof its Subsidiaries, in either case not otherwise permitted to be Incurred pursuant to paragraph (a) of this Section 908 or clauses (i) through (viii) above or clause constituting obligations for borrowed money;
(x) below, which, together with Debt of the Guarantor or any other outstanding Debt Incurred pursuant to this clause (ix) and the amount of all refinancing Debt outstanding or available pursuant to clause (vi) above its Subsidiaries in respect of Debt previously Incurred pursuant to this clause (ix) (other than any Additional Refinancing Amount), has an aggregate principal amount not to exceed performance or surety bonds issued for the greater of (A) $300,000,000 and (B) 0.5 times Pro Forma Consolidated Cash Flow Available for Fixed Charges account of the Issuer and the Issuer Restricted Subsidiaries for the four full fiscal quarters immediately preceding the Incurrence of such Debt for which the consolidated financial statements required to be delivered under Section 905 are available;
(a) Issue Date Purchase Money Debt initially Incurred by the Issuer Guarantor or any Issuer Restricted Subsidiary or another Person that became an Issuer Restricted Subsidiary on or before the Issue Date and (b) additional Purchase Money Debt Incurred by the Issuer or any Issuer Restricted Subsidiary; provided that, of its Subsidiaries in the case ordinary course of this clause (b), the amount of such Purchase Money Debt (together with the amount of all refinancing Debt outstanding or available pursuant to clause (vi) above in respect of such Purchase Money Debt (other than any Additional Refinancing Amount)) does not exceed 100% of the cost of the construction, installation, acquisition, lease, development or improvement of the applicable assets acquiredbusiness; and
(xi) additional Debt under incurred by the Existing Notes issued prior Guarantor and its Subsidiaries in an aggregate principal amount outstanding not to the Issue Date.
(c) Notwithstanding exceed at any other provision of this Section 908, time (A) the maximum amount of Debt the Issuer or any Issuer Restricted Subsidiary may Incur pursuant $0, during periods prior to this Section 908 shall not be deemed to be exceeded due solely to the result of fluctuations in the exchange rates of currencies and including February 28, 2003, (B) accrual of interest$2,000,000, accretion or amortization of original issue discountduring the period from March 1, the payment of interest on any Debt in the form of additional Debt with the same terms2003 to and including February 28, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock shall not be deemed to be an incurrence of Debt for purposes of this covenant.
(d) For purposes of determining any particular amount of Debt under this Section 908, (1) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included 2004 and (2C) any Liens granted for the benefit of the Securities pursuant to the provisions of $5,000,000, during all periods thereafter."
1.2 By amending and restating Section 910 shall not be treated as Debt. For purposes of determining compliance with this Section 908, (1) any Debt outstanding under the Existing Issuer Credit Facility will be treated as Incurred on the Issue Date pursuant to clause (ii) of paragraph (b) of this Section 908 and (2) in the event that an item of Debt meets the criteria of more than one of the types of Debt described in the above clauses, the Issuer, 5.08 in its sole discretion, may divide and classify (and, subject to clause (1) above, may later reclassify) such item of Debt and only be required to include the amount and type of such Debt in one of such clauses. When classifying multiple Incurrences of Debt on the same day, the Issuer may, in its sole discretion, specify the order of Incurrence of such Debt and need only give pro forma effect to the specified Incurrence (and any prior Incurrence) for purposes of classifying such specified Incurrence.entirety as follows:
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Samples: Prepackaged Plan of Reorganization Agreement (Viskase Companies Inc)
