Limitation on Incurrence of Additional Indebtedness. The Company will not, and will not permit any of its Restricted Subsidiaries to, after the Issue Date, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an acquisition), or otherwise become responsible for, contingently or otherwise (individually or collectively, to "Incur" or, as appropriate, an "Incurrence"), any Indebtedness. Neither the accrual of interest (including the issuance of "pay in kind" securities or similar instruments in respect of such accrued interest) pursuant to the terms of Indebtedness Incurred in compliance with this covenant, nor the accretion of original issue discount, nor the mere extension of the maturity of any Indebtedness shall be deemed to be an Incurrence of Indebtedness. Notwithstanding the foregoing, if there exists no Default or Event of Default immediately prior and subsequent thereto, the Company may incur Indebtedness if the Company's Annualized Operating Cash Flow Ratio, after giving effect to the Incurrence of such Indebtedness, would have been less than 8 to 1. In addition, if there exists no Default or Event of Default immediately prior and subsequent thereto, the foregoing limitations will not apply to the Incurrence of (i) Indebtedness by the Company or any of its Restricted Subsidiaries constituting Existing Indebtedness, reduced by repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and by repayments and permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereof, (ii) Indebtedness, in an aggregate principal amount not in excess of $525,000,000, permitted under the Credit Agreement, reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and (b) an amount equal to the aggregate amount of Indebtedness Incurred pursuant to clause (x), below, so long as such amounts Incurred pursuant to clause (x) remain outstanding; provided that, if there exists a Default or an Event of Default immediately prior or subsequent thereto, the Company and its Restricted Subsidiaries may Incur Indebtedness pursuant to this clause (ii) so long as the proceeds from such Incurrence are not used directly to pay any amounts owing in respect of any Indebtedness, including, without limitation, principal, interest and commitment fees, other than with respect to the Notes and the Holdings Securities, (iii) Indebtedness of the Company evidenced by the Securities, (iv)(A) Permitted Acquisition Indebtedness by the Company that satisfies the provisions of clause (x) of the definition thereof or (B) Permitted Acquisition Indebtedness by any Restricted Subsidiary that satisfies the provisions of clause (y) of the definition thereof, (v) Indebtedness between the Company and any Restricted Subsidiary of the Company or between Restricted Subsidiaries of the Company, provided that, in the case of Indebtedness of the Company, such obligations shall be unsecured and subordinated in all respects to the Holders' rights pursuant to the Securities, and the date of any event that causes a Restricted Subsidiary no longer to be a Restricted Subsidiary shall be an Incurrence Date with respect to such Indebtedness, (vi) Capitalized Lease Obligations and Purchase Money Indebtedness in an aggregate amount or aggregate principal amount, as the case may be, outstanding at any time not to exceed in the aggregate $15,000,000, provided that in the case of Purchase Money Indebt edness, such Indebtedness shall not constitute less than 75% nor more than 100% of the cost (determined in accordance with GAAP) to the Company or such Restricted Subsidiary of the property purchased or leased with the proceeds thereof, (vii) Indebtedness of the Company or any Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company to the extent none of the foregoing results in the obligation to repay an obligation for money borrowed by any Person and are limited in aggregate amount to no greater than 10% of the fair market value of such business, assets or Restricted Subsidiary so disposed of, (viii) any guarantee by any Restricted Subsidiary of any Senior Indebtedness Incurred in compliance with this Section 4.12, (ix) Indebtedness of the Company or any Restricted Subsidiary under standby letters of credit or xxxx bursement obligations with respect thereto issued in the ordinary course of busi ness and consistent with industry practices limited in aggregate amount to $5,000,000 at any one time outstanding, (x) Indebtedness of the Company (other than Indebtedness permitted by clauses (i) through (ix) or (xi) hereof) not to exceed $100,000,000 at any one time outstanding and (xi) Refinancing Indebted ness Incurred to extend, renew, replace or refund Indebtedness permitted under clauses (i) (as so reduced in amount), (ii) (as so reduced in amount), (iii), (iv) and (xi) of this paragraph. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (or that is a Non-Recourse Restricted Subsidiary designated to be a Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding at the time such Person becomes such a Restricted Subsidiary of the Company or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company shall be deemed to have been Incurred, as the case may be, at the time such Person becomes such a Restricted Subsidiary of the Company, or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company.
Appears in 1 contract
Limitation on Incurrence of Additional Indebtedness. The Company will not, and will not permit any of its Restricted Subsidiaries to, after the Issue Date, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an acquisition), or otherwise become responsible for, contingently or otherwise (individually or collectively, to "Incur" or, as appropriate, an "Incurrence"), any Indebtedness. Neither the accrual of interest (including the issuance of "pay in kind" securities or similar instruments in respect of such accrued interest) pursuant to the terms of Indebtedness Incurred in compliance with this covenant, nor the accretion of original issue discount, nor the mere extension of the maturity of any Indebtedness shall be deemed to be an Incurrence of Indebtedness. Notwithstanding the foregoing, if there exists no Default or Event of Default immediately prior and subsequent thereto, the Company may incur Indebtedness if the Company's Annualized Operating Cash Flow Ratio, after giving effect to the Incurrence of such Indebtedness, would have been less than 8 to 1. In addition, if there exists no Default or Event of Default immediately prior and subsequent thereto, the foregoing limitations will not apply to the Incurrence of (i) Indebtedness by the Company or any of its Restricted Subsidiaries constituting Existing Indebtedness, reduced by repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and by repayments and permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereof, (ii) Indebtedness, in an aggregate principal amount not in excess of $525,000,000, permitted under the Credit Agreement, reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and (b) an amount equal to the aggregate amount of Indebtedness Incurred pursuant to clause (x), below, so long as such amounts Incurred pursuant to clause (x) remain outstanding; provided that, if there exists a Default or an Event of Default immediately prior or subsequent thereto, the Company and its Restricted Subsidiaries may Incur Indebtedness pursuant to this clause (ii) so long as the proceeds from such Incurrence are not used directly to pay any amounts owing in respect of any Indebtedness, including, without limitation, principal, interest and commitment fees, other than with respect to the Notes and the Holdings Securities, (iii) Indebtedness of the Company evidenced by the Securities, (iv)(A) Permitted Acquisition Indebtedness by the Company that satisfies the provisions of clause (x) of the definition thereof or (B) Permitted Acquisition Indebtedness by any Restricted Subsidiary that satisfies the provisions of clause (y) of the definition thereof, (v) Indebtedness between the Company and any Restricted Subsidiary of the Company or between Restricted Subsidiaries of the Company, provided that, in the case of Indebtedness of the Company, such obligations shall be unsecured and subordinated in all respects to the Holders' rights pursuant to the Securities, and the date of any event that causes a Restricted Subsidiary no longer to be a Restricted Subsidiary shall be an Incurrence Date with respect to such Indebtedness, (vi) Capitalized Lease Obligations and Purchase Money Indebtedness in an aggregate amount or aggregate principal amount, as the case may be, outstanding at any time not to exceed in the aggregate $15,000,000, provided that in the case of Purchase Money Indebt ednessIndebtedness, such Indebtedness shall not constitute less than 75% nor more than 100% of the cost (determined in accordance with GAAP) to the Company or such Restricted Subsidiary of the property purchased or leased with the proceeds thereof, (vii) Indebtedness of the Company or any Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company to the extent none of the foregoing results in the obligation to repay an obligation for money borrowed by any Person and are limited in aggregate amount to no greater than 10% of the fair market value of such business, assets or Restricted Subsidiary so disposed of, (viii) any guarantee by any Restricted Subsidiary of any Senior Indebtedness Incurred in compliance with this Section 4.12, (ix) Indebtedness of the Company or any Restricted Subsidiary under standby letters of credit or xxxx bursement reimbursement obligations with respect thereto issued in the ordinary course of busi ness business and consistent with industry practices limited in aggregate amount to $5,000,000 at any one time outstanding, (x) Indebtedness of the Company (other than Indebtedness permitted by clauses (i) through (ix) or (xi) hereof) not to exceed $100,000,000 at any one time outstanding and (xi) Refinancing Indebted ness Indebtedness Incurred to extend, renew, replace or refund Indebtedness permitted under clauses (i) (as so reduced in amount), (ii) (as so reduced in amount), (iii), (iv) and (xi) of this paragraph. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (or that is a Non-Recourse Restricted Subsidiary designated to be a Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding at the time such Person becomes such a Restricted Subsidiary of the Company or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company shall be deemed to have been Incurred, as the case may be, at the time such Person becomes such a Restricted Subsidiary of the Company, or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company.
Appears in 1 contract
Limitation on Incurrence of Additional Indebtedness. The Company will not, and will not permit any of its Restricted Subsidiaries to, after the Issue Date, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an acquisition), or otherwise become responsible for, contingently or otherwise (individually or collectively, to "Incur" or, as appropriate, an "Incurrence"), any Indebtedness. Neither the accrual of interest (including the issuance of "pay in kind" securities or similar instruments in respect of such accrued interest) pursuant to the terms of Indebtedness Incurred in compliance with this covenant, nor the accretion of original issue discount, nor the mere extension of the maturity of any Indebtedness shall be deemed to be an Incurrence of Indebtedness. Notwithstanding the foregoing, if there exists no Default or Event of Default immediately prior and subsequent thereto, the Company may incur Indebtedness if the Company's Annualized Operating Cash Flow Ratio, after giving effect to the Incurrence of such Indebtedness, would have been less than 8 to 1. In addition, if there exists no Default or Event of Default immediately prior and subsequent thereto, the foregoing limitations will not apply to the Incurrence of (i) Indebtedness by the Company or any of its Restricted Subsidiaries constituting Existing Indebtedness, reduced by repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 4.14 and by repayments and permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereof, (ii) Indebtedness, in an aggregate principal amount not in excess of $525,000,000, permitted under the Credit Agreement, reduced Indebtedness by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and (b) an amount equal to the aggregate amount of Indebtedness Incurred pursuant to clause (x), below, so long as such amounts Incurred pursuant to clause (x) remain outstanding; provided that, if there exists a Default or an Event of Default immediately prior or subsequent thereto, the Company and its Restricted Subsidiaries may Incur Indebtedness pursuant to this clause (ii) so long as the proceeds from such Incurrence are not used directly to pay any amounts owing in respect of any Indebtedness, including, without limitation, principal, interest and commitment fees, other than with respect to the Notes and the Holdings Securities, (iii) Indebtedness of the Company evidenced by the Securities, (iv)(Aiii)(A) Permitted Acquisition Indebtedness by the Company that satisfies the provisions of clause (x) of the definition thereof or (B) Permitted Acquisition Indebtedness by any Restricted Subsidiary that satisfies the provisions of clause (y) of the definition thereof, (viv) Indebtedness between the Company and any Restricted Subsidiary of the Company or between Restricted Subsidiaries of the Company, provided that, in the case of Indebtedness of the Company, such obligations shall be unsecured and subordinated in all respects to the Holders' rights pursuant to the Securities, and the date of any event that causes a Restricted Subsidiary no longer to be a Restricted Subsidiary shall be an Incurrence Date with respect to such Indebtedness, (viv) Capitalized Lease Obligations and Purchase Money Indebtedness in an aggregate amount or aggregate principal amount, as the case may be, outstanding at any time not to exceed in the aggregate $15,000,00010,000,000, provided that in the case of Purchase Money Indebt ednessIndebtedness, such Indebtedness shall not constitute less than 75% nor more than 100% of the cost (determined in accordance with GAAP) to the Company or such Restricted Subsidiary of the property purchased or leased with the proceeds thereof, (viivi) Indebtedness of the Company or any Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company to the extent none of the foregoing results in the obligation to repay an obligation for money borrowed by any Person and are limited in aggregate amount to no greater than 10% of the fair market value of such business, assets or Restricted Subsidiary so disposed of, (viiivii) any guarantee by any Restricted Subsidiary of any (A) Senior Indebtedness Incurred in compliance with this Section 4.12covenant or (B) Indebtedness Incurred pursuant to clause (ix) of this paragraph, (ixviii) Indebtedness of the Company or any Restricted Subsidiary under standby letters of credit or xxxx bursement reimbursement obligations with respect thereto issued in the ordinary course of busi ness business and consistent with industry practices limited in aggregate amount to $5,000,000 2,000,000 at any one time outstanding, (xix) Indebtedness of the Company (other than Indebtedness permitted by clauses (i) through (ixviii) or (xix) hereof) not to exceed $100,000,000 50,000,000 at any one time outstanding and (xix) Refinancing Indebted ness Indebtedness Incurred to extend, renew, replace or refund Indebtedness permitted under clauses (i) (as so reduced in amount), (ii) (as so reduced in amount), (iii), (iv) and (xix) of this paragraph. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (or that is a Non-Recourse Restricted Subsidiary designated to be a Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding at the time such Person becomes such a Restricted Subsidiary of the Company or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company shall be deemed to have been Incurred, as the case may be, at the time such Person becomes such a Restricted Subsidiary of the Company, or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company.
Appears in 1 contract
Limitation on Incurrence of Additional Indebtedness. The Company will not, and will not permit any of its Restricted Subsidiaries to, after the Issue Date, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an 50 acquisition), or otherwise become responsible for, contingently or otherwise (individually or collectively, to "Incur" or, as appropriate, an "Incurrence"), any Indebtedness. Neither the accrual of interest (including the issuance of "pay in kind" securities or similar instruments in respect of such accrued interest) pursuant to the terms of Indebtedness Incurred in compliance with this covenant, nor the accretion of original issue discount, nor the mere extension of the maturity of any Indebtedness shall be deemed to be an Incurrence of Indebtedness. Notwithstanding the foregoing, if there exists no Default or Event of Default immediately prior and subsequent thereto, the Company may incur Indebtedness if the Company's Annualized Operating Cash Flow Ratio, after giving effect to the Incurrence of such Indebtedness, would have been less than 8 to 1. In addition, if there exists no Default or Event of Default immediately prior and subsequent thereto, the foregoing limitations will not apply to the Incurrence of (i) Indebtedness by the Company or any of its Restricted Subsidiaries constituting Existing Indebtedness, reduced by repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and by repayments and permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereof, (ii) Indebtedness, in an aggregate principal amount not in excess of $525,000,000, permitted under the Credit Agreement, reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and (b) an amount equal to the aggregate amount of Indebtedness Incurred pursuant to clause (x), below, so long as such amounts Incurred pursuant to clause (x) remain outstanding; provided that, if there exists a Default or an Event of Default immediately prior or subsequent thereto, the Company and its Restricted Subsidiaries may Incur Indebtedness pursuant to this clause (ii) so long as the proceeds from such Incurrence are not used directly to pay any amounts owing in respect of any Indebtedness, including, without limitation, principal, interest and commitment fees, other than with respect to the Notes and the Holdings Securities, (iii) Indebtedness of the Company evidenced by the Securities, (iv)(A) Permitted Acquisition Indebtedness by the Company that satisfies the provisions of clause (x) of the definition thereof or (B) Permitted Acquisition Indebtedness by any Restricted Subsidiary that satisfies the provisions of clause (y) of the definition thereof, (v) Indebtedness between the Company and any Restricted Subsidiary of the Company or between Restricted Subsidiaries of the Company, provided that, in the case of Indebtedness of the Company, such obligations shall be unsecured and subordinated in all respects to the Holders' rights pursuant to the Securities, and the date of any event that causes causes
a Restricted Subsidiary no longer to be a Restricted Subsidiary shall be an Incurrence Date with respect to such Indebtedness, (vi) Capitalized Lease Obligations and Purchase Money Indebtedness in an aggregate amount or aggregate principal amount, as the case may be, outstanding at any time not to exceed in the aggregate $15,000,000, provided that in the case of Purchase Money Indebt Indebt- edness, such Indebtedness shall not constitute less than 75% nor more than 100% of the cost (determined in accordance with GAAP) to the Company or such Restricted Subsidiary of the property purchased or leased with the proceeds thereof, (vii) Indebtedness of the Company or any Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company to the extent none of the foregoing results in the obligation to repay an obligation for money borrowed by any Person and are limited in aggregate amount to no greater than 10% of the fair market value of such business, assets or Restricted Subsidiary so disposed of, (viii) any guarantee by any Restricted Subsidiary of any Senior Indebtedness Incurred in compliance with this Section 4.12, (ix) Indebtedness of the Company or any Restricted Subsidiary under standby letters of credit or xxxx bursement reimbursement obligations with respect thereto issued in the ordinary course of busi ness business and consistent with industry practices limited in aggregate amount to $5,000,000 at any one time outstanding, (x) Indebtedness of the Company (other than Indebtedness permitted by clauses (i) through (ix) or (xi) hereof) not to exceed $100,000,000 at any one time outstanding and (xi) Refinancing Indebted ness Incurred to extend, renew, replace or refund Indebtedness permitted under clauses (i) (as so reduced in amount), (ii) (as so reduced in amount), (iii), (iv) and (xi) of this paragraph. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (or that is a Non-Recourse Restricted Subsidiary designated to be a Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding at the time such Person becomes such a Restricted Subsidiary of the Company or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company shall be deemed to have been Incurred, as the case may be, at the time such Person becomes such a Restricted Subsidiary of the Company, or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company.
Appears in 1 contract
Limitation on Incurrence of Additional Indebtedness. (a) The Company will notnot Incur any Indebtedness, provided, however, the Company may Incur Indebtedness, if, at the time of and immediately after giving pro forma effect to the Incurrence thereof and the application of the proceeds therefrom, the ratio of (i) the amount of the Company’s unconsolidated short-term Indebtedness (current liabilities) to (ii) its total assets, as specified in the Company’s most recently available Basic Quarterly Financial Statements or Basic Annual Financial Statements, as applicable, prior to the date of such Incurrence is lower than 0.35. For the avoidance of doubt, the Trustee shall not be required to determine the ratio described in this Section 3.16(a).
(b) For purposes of determining compliance with, and will not permit any of its Restricted Subsidiaries to, after the Issue Date, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an acquisition), or otherwise become responsible for, contingently or otherwise (individually or collectively, to "Incur" or, as appropriate, an "Incurrence")outstanding principal amount of, any Indebtedness. Neither the accrual of interest (including the issuance of "pay in kind" securities or similar instruments in respect of such accrued interest) particular Indebtedness Incurred pursuant to the terms of Indebtedness Incurred and in compliance with this covenant, nor the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with Argentine GAAP. Accrual of interest, the accretion or amortization of original issue discount, nor the mere extension payment of regularly scheduled interest in the form of additional Indebtedness of the maturity of any Indebtedness shall same instrument with the same terms will not be deemed to be an Incurrence of Indebtedness. Notwithstanding the foregoingIndebtedness for purposes of this Section 3.16; provided, if there exists no Default or Event of Default immediately prior and subsequent thereto, the Company may incur Indebtedness if the Company's Annualized Operating Cash Flow Ratio, after giving effect to the Incurrence of that any such Indebtedness, would have been less than 8 to 1. In addition, if there exists no Default or Event of Default immediately prior and subsequent thereto, the foregoing limitations will not apply to the Incurrence of (i) Indebtedness by the Company or any of its Restricted Subsidiaries constituting Existing Indebtedness, reduced by repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and by repayments and permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereof, (ii) Indebtedness, in an aggregate principal amount not in excess of $525,000,000, permitted under the Credit Agreement, reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and (b) an amount equal to the aggregate amount of additional Indebtedness Incurred pursuant to clause (x), below, so long this Section 3.16 will be counted as such amounts Incurred pursuant to clause (x) remain outstanding; provided that, if there exists a Default or an Event Indebtedness outstanding thereunder for purposes of Default immediately prior or subsequent theretoany future Incurrence under this Section 3.16. Notwithstanding any other provision of this Section 3.16, the maximum amount of Indebtedness that the Company and its Restricted Subsidiaries may Incur Indebtedness pursuant to this clause (ii) so long as the proceeds from such Incurrence are not used directly to pay any amounts owing in respect of any IndebtednessSection 3.16, including, without limitation, principal, interest and commitment fees, other than with respect to the Notes and the Holdings Securities, (iii) Indebtedness of the Company evidenced by the Securities, (iv)(A) Permitted Acquisition Indebtedness by the Company that satisfies the provisions of clause (x) of the definition thereof or (B) Permitted Acquisition Indebtedness by any Restricted Subsidiary that satisfies the provisions of clause (y) of the definition thereof, (v) Indebtedness between the Company and any Restricted Subsidiary of the Company or between Restricted Subsidiaries of the Company, provided that, in the case of Indebtedness of the Company, such obligations shall be unsecured and subordinated in all respects to the Holders' rights pursuant to the Securities, and the date of any event that causes a Restricted Subsidiary no longer to be a Restricted Subsidiary shall be an Incurrence Date with respect to such Indebtedness, (vi) Capitalized Lease Obligations and Purchase Money Indebtedness in an aggregate amount or aggregate principal amount, as the case may be, outstanding at any time not to exceed in the aggregate $15,000,000, provided that in the case of Purchase Money Indebt edness, such Indebtedness shall not constitute less than 75% nor more than 100% of the cost (determined in accordance with GAAP) to the Company or such Restricted Subsidiary of the property purchased or leased with the proceeds thereof, (vii) Indebtedness of the Company or any Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company to the extent none of the foregoing results in the obligation to repay an obligation for money borrowed by any Person and are limited in aggregate amount to no greater than 10% of the fair market value of such business, assets or Restricted Subsidiary so disposed of, (viii) any guarantee by any Restricted Subsidiary of any Senior Indebtedness Incurred in compliance with this Section 4.12, (ix) Indebtedness of the Company or any Restricted Subsidiary under standby letters of credit or xxxx bursement obligations with respect thereto issued in the ordinary course of busi ness and consistent with industry practices limited in aggregate amount to $5,000,000 at any one time outstanding, (x) Indebtedness of the Company (other than Indebtedness permitted by clauses (i) through (ix) or (xi) hereof) not to exceed $100,000,000 at any one time outstanding and (xi) Refinancing Indebted ness Incurred to extend, renew, replace or refund Indebtedness permitted under clauses (i) (as so reduced in amount), (ii) (as so reduced in amount), (iii), (iv) and (xi) of this paragraph. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (or that is a Non-Recourse Restricted Subsidiary designated to be a Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding at the time such Person becomes such a Restricted Subsidiary of the Company or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company shall be deemed to have been Incurred, be exceeded as the case may be, at the time such Person becomes such a Restricted Subsidiary result solely of the Company, fluctuations in exchange rates or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Companycurrency values.
Appears in 1 contract
Samples: Indenture (Cresud Inc)
Limitation on Incurrence of Additional Indebtedness. The After the Issue Date, the Company will not, and will not permit any of its Restricted Subsidiaries to, after the Issue Date, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an acquisition), or otherwise become responsible for, contingently or otherwise (individually or collectively, to "Incur" or, as appropriate, an "Incurrence"), any Indebtedness. Neither the accrual of interest (including the issuance of "pay in kind" securities or similar instruments in respect of such accrued interest) pursuant to the terms of Indebtedness Incurred in compliance with this covenant, nor the accretion of original issue discount, nor the mere extension of the maturity of any Indebtedness shall be deemed to be an Incurrence of Indebtedness. Notwithstanding the foregoing, if there exists no Default or Event of Default immediately prior and subsequent thereto, the Company may incur Incur Indebtedness if the Company's Annualized Operating Cash Flow Ratioif, after giving effect to the Incurrence of such Indebtedness, the Company's Annualized Operating Cash Flow Ratio would have been less than 8 8.0 to 1. In addition, if there exists no Default or Event of Default immediately prior and subsequent thereto, the foregoing limitations will not apply to the Incurrence of of:
(i) Indebtedness by the Company or any of its Restricted Subsidiaries constituting Existing Indebtedness, reduced by repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in under Section 4.15 and by repayments and permanent reductions in amounts outstanding pursuant to scheduled amortizations amortization and mandatory prepayments in accordance with the terms thereof, ;
(ii) Indebtedness, unsecured Indebtedness Incurred by the Company or any Guarantor in an aggregate principal amount outstanding at any time not in excess of to exceed $525,000,000, permitted under the Credit Agreement, 100,000,000 reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and (b) an amount equal to the aggregate amount of Indebtedness amounts Incurred pursuant to clause (x), ) below, so long as such amounts Incurred pursuant to clause (x) remain outstanding; provided that, if there exists a Default or an Event of Default immediately prior or subsequent thereto, the Company and its Restricted Subsidiaries may Incur Indebtedness pursuant to this clause (ii) so long as the proceeds from such Incurrence are not used directly to pay any amounts owing in respect of any Indebtedness, including, without limitation, principal, interest and commitment fees, other than with respect to the Notes and the Holdings Securities, ;
(iii) Indebtedness of Incurred by the Company evidenced by the Securities, Initial Securities and the Exchange Securities therefor and the guarantees thereof by Restricted Subsidiaries;
(iv)(Aa) Permitted Acquisition Indebtedness by the Company that satisfies the provisions of clause (x) of the definition thereof or (Bb) Permitted Acquisition Indebtedness In- debtedness by any Restricted Subsidiary that satisfies the provisions of clause (y) of the definition thereof, ;
(v) Indebtedness between the Company and any Restricted Subsidiary of the Company or between Restricted Subsidiaries of the Company; provided, provided however, that, in the case of Indebtedness of the Company, such obligations shall be unsecured and subordinated in all respects to the Holders' rights pursuant to the Securities, and the date of any event that causes a Restricted Subsidiary no longer to be a Restricted Subsidiary shall be an Incurrence Date with respect to such Indebtedness, ;
(vi) Capitalized Lease Obligations and Purchase Money Indebtedness in an aggregate amount or aggregate principal amount, as the case may be, outstanding at any time not to exceed in the aggregate $15,000,000; provided, provided however, that in the case of Purchase Money Indebt ednessIndebtedness, such Indebtedness shall not constitute less than 75% nor more than 100% of the cost (determined in accordance with GAAP) to the Company or such Restricted Subsidiary of the property purchased or leased with the proceeds thereof, ;
(vii) Indebtedness of the Company or any Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company to the extent none of the foregoing results in the obligation to repay an obligation for money borrowed by any Person and are limited in aggregate amount to no greater than 10% of the fair market value of such business, assets or Restricted Subsidiary so disposed of, ;
(viii) any guarantee by any Restricted Subsidiary of any Senior Indebtedness Incurred in compliance with this Section 4.12, 4.20;
(ix) Indebtedness of the Company or any Restricted Subsidiary under standby letters of credit or xxxx bursement reimbursement obligations with respect thereto issued in the ordinary course of busi ness business and consistent with industry practices limited in aggregate amount to $5,000,000 at any one time outstanding, ; and
(x) Refinancing Indebtedness of the Company (other than Indebtedness permitted by clauses (i) through (ix) or (xi) hereof) not to exceed $100,000,000 at any one time outstanding and (xi) Refinancing Indebted ness Incurred to extend, renew, replace or refund Indebtedness permitted under clauses (i) (as so reduced in amount), (ii) (as so reduced in amount), (iii), (iv) and (xix) of this paragraph. For purposes of determining compliance with this Section 4.12, in the event that an item of Indebtedness meets the criteria of more than one of the categories described above or is entitled to be incurred pursuant to the second paragraph of this Section 4.12, the Company shall, in its sole discretion, classify such item of Indebtedness in any manner that complies with this Section 4.12 and such item of Indebtedness will be treated as having been incurred pursuant to only one of such clauses or pursuant to the second paragraph of this Section 4.12. In addition, the Company may, at any time, change the classification of an item of Indebtedness (or any portion thereof) to any other clause or to the second paragraph of this Section, provided that the Company would be permitted to incur such item of Indebtedness (or such portion thereof) pursuant to such other clause or the second paragraph of this Section, as the case may be, at such time of reclassification. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (or that is a Non-Recourse Restricted Subsidiary designated to be a Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding at the time such Person becomes such a Restricted Subsidiary of the Company or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company shall be deemed to have been Incurred, as the case may be, at the time such Person becomes such a Restricted Subsidiary of the Company, or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company.
Appears in 1 contract
Limitation on Incurrence of Additional Indebtedness. The After the Issue Date, the Company will not, and will not permit any of its Restricted Subsidiaries to, after the Issue Date, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an acquisition), or otherwise become responsible for, contingently or otherwise (individually or collectively, to "IncurINCUR" or, as appropriate, an "IncurrenceINCURRENCE"), any Indebtedness. Neither the accrual of interest (including the issuance of "pay in kind" securities or similar instruments in respect of such accrued interest) pursuant to the terms of Indebtedness Incurred in compliance with this covenant, nor the accretion of original issue discount, nor the mere extension of the maturity of any Indebtedness shall be deemed to be an Incurrence of Indebtedness. Notwithstanding the foregoing, if there exists no Default or Event of Default immediately prior and subsequent thereto, the Company may incur Incur Indebtedness if the Company's Annualized Operating Cash Flow Ratioif, after giving effect to the Incurrence of such Indebtedness, the Company's Annualized Operating Cash Flow Ratio would have been less than 8 8.0 to 1. In addition, if there exists no Default or Event of Default immediately prior and subsequent thereto, the foregoing limitations will not apply to the Incurrence of of:
(i) Indebtedness by the Company or any of its Restricted Subsidiaries constituting Existing Indebtedness, reduced by repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in under Section 4.15 and by repayments and permanent reductions in amounts outstanding pursuant to scheduled amortizations amortization and mandatory prepayments in accordance with the terms thereof, ;
(ii) Indebtedness, unsecured Indebtedness Incurred by the Company or any Guarantor in an aggregate principal amount outstanding at any time not in excess of to exceed $525,000,000, permitted under the Credit Agreement, 100,000,000 reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and (b) an amount equal to the aggregate amount of Indebtedness amounts Incurred pursuant to clause (x), ) below, so long as such amounts Incurred pursuant to clause (x) remain outstanding; provided that, if there exists a Default or an Event of Default immediately prior or subsequent thereto, the Company and its Restricted Subsidiaries may Incur Indebtedness pursuant to this clause (ii) so long as the proceeds from such Incurrence are not used directly to pay any amounts owing in respect of any Indebtedness, including, without limitation, principal, interest and commitment fees, other than with respect to the Notes and the Holdings Securities, ;
(iii) Indebtedness of Incurred by the Company evidenced by the Securities, Initial Securities and the Exchange Securities therefor and the guarantees thereof by Restricted Subsidiaries;
(iv)(Aa) Permitted Acquisition Indebtedness by the Company that satisfies the provisions of clause (x) of the definition thereof or (Bb) Permitted Acquisition Indebtedness by any Restricted Subsidiary that satisfies the provisions of clause (y) of the definition thereof, ;
(v) Indebtedness between the Company and any Restricted Subsidiary of the Company or between Restricted Subsidiaries of the Company; PROVIDED, provided HOWEVER, that, in the case of Indebtedness of the Company, such obligations shall be unsecured and subordinated in all respects to the Holders' rights pursuant to the Securities, and the date of any event that causes a Restricted Subsidiary no longer to be a Restricted Subsidiary shall be an Incurrence Date with respect to such Indebtedness, ;
(vi) Capitalized Lease Obligations and Purchase Money Indebtedness in an aggregate amount or aggregate principal amount, as the case may be, outstanding at any time not to exceed in the aggregate $15,000,000; PROVIDED, provided HOWEVER, that in the case of Purchase Money Indebt ednessIndebtedness, such Indebtedness shall not constitute less than 75% nor more than 100% of the cost (determined in accordance with GAAP) to the Company or such Restricted Subsidiary of the property purchased or leased with the proceeds thereof, ;
(vii) Indebtedness of the Company or any Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company to the extent none of the foregoing results in the obligation to repay an obligation for money borrowed by any Person and are limited in aggregate amount to no greater than 10% of the fair market value of such business, assets or Restricted Subsidiary so disposed of, ;
(viii) any guarantee by any Restricted Subsidiary of any Senior Indebtedness Incurred in compliance with this Section 4.12, 4.20;
(ix) Indebtedness of the Company or any Restricted Subsidiary under standby letters of credit or xxxx bursement reimbursement obligations with respect thereto issued in the ordinary course of busi ness business and consistent with industry practices limited in aggregate amount to $5,000,000 at any one time outstanding, ; and
(x) Refinancing Indebtedness of the Company (other than Indebtedness permitted by clauses (i) through (ix) or (xi) hereof) not to exceed $100,000,000 at any one time outstanding and (xi) Refinancing Indebted ness Incurred to extend, renew, replace or refund Indebtedness permitted under clauses (i) (as so reduced in amount), (ii) (as so reduced in amount), (iii), (iv) and (xix) of this paragraph. For purposes of determining compliance with this Section 4.12, in the event that an item of Indebtedness meets the criteria of more than one of the categories described above or is entitled to be incurred pursuant to the second paragraph of this Section 4.12, the Company shall, in its sole discretion, classify such item of Indebtedness in any manner that complies with this Section 4.12 and such item of Indebtedness will be treated as having been incurred pursuant to only one of such clauses or pursuant to the second paragraph of this Section 4.12. In addition, the Company may, at any time, change the classification of an item of Indebtedness (or any portion thereof) to any other clause or to the second paragraph of this Section, provided that the Company would be permitted to incur such item of Indebtedness (or such portion thereof) pursuant to such other clause or the second paragraph of this Section, as the case may be, at such time of reclassification. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (or that is a Non-Recourse Restricted Subsidiary designated to be a Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding at the time such Person becomes such a Restricted Subsidiary of the Company or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company shall be deemed to have been Incurred, as the case may be, at the time such Person becomes such a Restricted Subsidiary of the Company, or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company.
Appears in 1 contract
Limitation on Incurrence of Additional Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, after and each of the Issue DateGuarantors will not, directly or indirectlycreate, issue, create, incur, assume, guarantee or otherwise in any manner become directly or indirectly become liable for (including as a result of an acquisition), with respect to or otherwise become responsible for, contingently or otherwise otherwise, the payment of (individually or and collectively, to "Incur" “incur” or, as appropriate, an "Incurrence"“incurrence”), any Indebtedness (other than Permitted Indebtedness. Neither ).
(b) This Indenture will not, however, prohibit the accrual following (collectively, “Permitted Indebtedness”):
(1) Indebtedness of interest 2degrees and its Subsidiaries due and owing to governmental entities or regulatory authorities in connection with telecommunications licenses (including the issuance of "pay in kind" securities or similar instruments permits, consents or approvals) or any renewal thereof, or Indebtedness of 2degrees and its Subsidiaries incurred to finance the payment of deposits for telecommunications licenses (or similar permits, consents or approvals) or any renewal thereof, to any governmental or regulatory authority related to a license (or similar permits, consents or approvals);
(i) Indebtedness represented by the Notes issued on the Issue Date (but excluding any Additional Notes), and (ii) Indebtedness under the Remaining Existing Notes (but not including any additional Existing Notes) (and any Permitted Refinancing Indebtedness in respect of the foregoing) in an aggregate principal amount, for clauses (i) and (ii), not to exceed $356,997,400 (or, if the principal amount of the Notes is increased in accordance with Section 4.26, $367,707,322) at any one time outstanding;
(3) any Indebtedness of the Company, any Restricted Subsidiary or any Guarantor outstanding on the Issue Date (other than (x) Existing Notes refinanced with the Notes on the Issue Date, (y) Indebtedness specified in clause (2) above or clause (6) below and (z) Indebtedness that could be incurred under clause (14) below that is outstanding on the Issue Date and which shall be deemed incurred under such accrued interestclause) and any Permitted Refinancing Indebtedness in respect thereof;
(4) the incurrence by the Company, any Restricted Subsidiary or any Guarantor of intercompany Indebtedness between or among the Company, any Restricted Subsidiaries or any Guarantors (other than New Zealand Financing Indebtedness); provided that (A) any such Indebtedness of an Issuer is unsecured and subordinated, pursuant to a written agreement, to the terms Company’s obligations under the Notes and this Indenture, (B) any such Indebtedness of a Guarantor is unsecured and, other than any such Indebtedness Incurred in compliance with this covenantrespect of any Company-Trilogy LLC Intercompany Loan, nor subordinated, pursuant to a written agreement, to such Guarantor’s Note Guarantee and (C) (i) any disposition, pledge or transfer of any such Indebtedness to a Person (other than (x) a disposition, pledge or transfer to the accretion Company, a Restricted Subsidiary or a Guarantor, or (y) a disposition, pledge or transfer of original issue discount, nor the mere extension any of the maturity Company’s right, title or interest in any Company-Trilogy LLC Intercompany Loan in connection with the creation, enforcement or foreclosure by or on behalf of the Holders or the holders of the 10% Notes of any Lien thereon that secures the obligations of the Company in respect of the Notes or the 10% Notes) and (ii) any transaction pursuant to which any Restricted Subsidiary that has Indebtedness shall owing to the Company, a Guarantor or another Restricted Subsidiary ceases to be a Restricted Subsidiary will, in each case, be deemed to be an Incurrence incurrence of Indebtedness. Notwithstanding the foregoing, if there exists no Default or Event such Indebtedness not permitted by this clause (4);
(5) guarantees of Default immediately prior and subsequent thereto, the Company may incur Indebtedness if the Company's Annualized Operating Cash Flow Ratio’s Indebtedness or Indebtedness of any Restricted Subsidiary by 2degrees and its Subsidiaries if such guaranteed Indebtedness is otherwise permitted to be incurred under this Indenture;
(6) Indebtedness represented by the 10% Notes (and any Permitted Refinancing Indebtedness in respect thereof) in an aggregate principal amount not to exceed $51.0 million at any one time outstanding;
(7) the incurrence by Trilogy LLC, 2degrees and Subsidiaries of 2degrees of Indebtedness arising from agreements providing for guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by Trilogy LLC, 2degrees and Subsidiaries of 2degrees of Indebtedness incurred by any Person (other than Trilogy LLC, 2degrees and Subsidiaries of 2degrees) acquiring all or any portion of such assets for the purpose of financing such acquisition;
(8) the incurrence by the Company, any Restricted Subsidiary or any Guarantor of Indebtedness under Currency Agreements entered into in the ordinary course of business and not for speculative purposes;
(9) the incurrence by the Company, any Restricted Subsidiary or any Guarantor of Indebtedness under Interest Rate Agreements entered into in the ordinary course of business and not for speculative purposes;
(10) the incurrence of Indebtedness by the Company, any Restricted Subsidiary or any Guarantor in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances or credit;
(11) the incurrence of Indebtedness by the Company, any Restricted Subsidiary or any Guarantor arising from (A) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within 5 Business Days of incurrence, (B) bankers’ acceptances, performance, surety, judgment, appeal or similar bonds, instruments or obligations, (C) completion guarantees provided or letters of credit obtained by the Company, any Restricted Subsidiary or any Guarantor, or in respect of performance, surety or appeal bonds provided, in the ordinary course of business; and (D) the financing of insurance premiums in the ordinary course of business;
(12) [reserved];
(13) [reserved];
(14) (x) prior to the consummation of the initial 2degrees Liquidity Event, Indebtedness incurred by 2degrees and its Subsidiaries in an aggregate principal amount at any one time outstanding not to exceed the greater of (A) NZ$245.0 million (including any such Indebtedness outstanding on the Issue Date) and (B) such other amount to the extent that, after giving effect to the Incurrence incurrence of such IndebtednessIndebtedness by 2degrees and its Subsidiaries and the application of the proceeds thereof, would have been less than 8 to 1. In addition, if there exists no Default or Event of Default immediately prior and subsequent theretoon a pro forma basis, the foregoing limitations will not apply Consolidated Leverage Ratio of 2degrees and its Subsidiaries (as evidenced by an Officers’ Certificate to the Incurrence of Trustee (i) Indebtedness by the Company or in respect of any such incurrence in excess of its Restricted Subsidiaries constituting Existing IndebtednessNZ$2.0 million, reduced by repayments of and permanent reductions in commitments in satisfaction within five (5) Business Days of the Net Cash Proceeds application requirement set forth in Section 4.15 date of any such incurrence and by repayments and permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereof, (ii) Indebtednessin respect of any other such incurrence, (a) within 60 days after the end of each of the first three fiscal quarters of each fiscal year of Trilogy LLC and (b) within 105 days after the end of each fiscal year of Trilogy LLC, in each case, setting forth in reasonable detail such calculation) would be less than 2.0 to 1.0; (y) at all times prior to and following the consummation of any 2degrees Liquidity Event, Indebtedness incurred by 2degrees and its Subsidiaries in respect of any Permitted Receivables Financing in an aggregate principal amount not in excess of $525,000,000, permitted under the Credit Agreement, reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and (b) an amount equal to the aggregate amount of Indebtedness Incurred pursuant to clause (x), below, so long as such amounts Incurred pursuant to clause (x) remain outstanding; provided that, if there exists a Default or an Event of Default immediately prior or subsequent thereto, the Company and its Restricted Subsidiaries may Incur Indebtedness pursuant to this clause (ii) so long as the proceeds from such Incurrence are not used directly to pay any amounts owing in respect of any Indebtedness, including, without limitation, principal, interest and commitment fees, other than with respect to the Notes and the Holdings Securities, (iii) Indebtedness of the Company evidenced by the Securities, (iv)(A) Permitted Acquisition Indebtedness by the Company that satisfies the provisions of clause (x) of the definition thereof or (B) Permitted Acquisition Indebtedness by any Restricted Subsidiary that satisfies the provisions of clause (y) of the definition thereof, (v) Indebtedness between the Company and any Restricted Subsidiary of the Company or between Restricted Subsidiaries of the Company, provided that, in the case of Indebtedness of the Company, such obligations shall be unsecured and subordinated in all respects to the Holders' rights pursuant to the Securities, and the date of any event that causes a Restricted Subsidiary no longer to be a Restricted Subsidiary shall be an Incurrence Date with respect to such Indebtedness, (vi) Capitalized Lease Obligations and Purchase Money Indebtedness in an aggregate amount or aggregate principal amount, as the case may be, outstanding at any time not to exceed in the aggregate $15,000,000, provided that in the case of Purchase Money Indebt edness, such Indebtedness shall not constitute less than 75% nor more than 100% of the cost (determined in accordance with GAAP) to the Company or such Restricted Subsidiary of the property purchased or leased with the proceeds thereof, (vii) Indebtedness of the Company or any Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company to the extent none of the foregoing results in the obligation to repay an obligation for money borrowed by any Person and are limited in aggregate amount to no greater than 10% of the fair market value of such business, assets or Restricted Subsidiary so disposed of, (viii) any guarantee by any Restricted Subsidiary of any Senior Indebtedness Incurred in compliance with this Section 4.12, (ix) Indebtedness of the Company or any Restricted Subsidiary under standby letters of credit or xxxx bursement obligations with respect thereto issued in the ordinary course of busi ness and consistent with industry practices limited in aggregate amount to $5,000,000 NZ$50.0 million at any one time outstanding; and (z) at all times prior to and following the consummation of any 2degrees Liquidity Event, New Zealand Financing Indebtedness;
(x15) [reserved];
(16) the incurrence by the Company, any Restricted Subsidiary or any Guarantor of Indebtedness of to the Company extent that the net proceeds thereof are promptly deposited to defease or to satisfy and discharge the Notes; and
(other than 17) following the initial 2degrees Liquidity Event, Indebtedness permitted incurred by clauses (i) through (ix) or (xi) hereof) not to exceed $100,000,000 2degrees and its Subsidiaries in an aggregate principal amount at any one time outstanding not to exceed such amount to the extent that, after giving effect to the incurrence of such Indebtedness by 2degrees and its Subsidiaries and the application of the proceeds thereof, on a pro forma basis, the Consolidated Leverage Ratio of 2degrees and its Subsidiaries (xi) Refinancing Indebted ness Incurred as evidenced by an Officers’ Certificate to extend, renew, replace or refund Indebtedness permitted under clauses the Trustee (i) in respect of any such incurrence in excess of NZ$2.0 million, within five (as so reduced in amount), 5) Business Days of the date of any such incurrence and (ii) (as so reduced in amount)respect of any other such incurrence, (a) within 60 days after the end of each of the first three fiscal quarters of each fiscal year of Trilogy LLC and (b) within 105 days after the end of each fiscal year of Trilogy LLC, in each case, setting forth in reasonable detail such calculation) would be less than 1.5 to 1.0.
(c) Notwithstanding any other provision of this Indenture, for purposes of determining compliance with this Indenture, increases in Indebtedness solely due to fluctuations in the exchange rates of currencies will not be deemed to exceed the maximum amount that the Company, its Restricted Subsidiaries or the Guarantors may incur under this Indenture, and in no event shall the reclassification of any lease or other liability as Indebtedness due to a change in GAAP after the Issue Date be deemed to be an incurrence of Indebtedness.
(d) For purposes of determining any particular amount of Indebtedness under this Indenture:
(i) obligations with respect to letters of credit, guarantees or Liens, in each case supporting Indebtedness otherwise included in the determination of such particular amount, shall not be included;
(ii) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.10 will not be treated as Indebtedness;
(iii)) accrual of interest, accrual of dividends, the accretion of accreted value, the reclassification of Preferred Stock as Indebtedness due to a change in GAAP or the application thereof, the payment of dividends on Disqualified Capital Stock in the form of additional shares of the same class of Disqualified Capital Stock, the obligation to pay commitment fees and the payment of interest in the form of additional Indebtedness will not be treated as the incurrence of Indebtedness;
(iv) and in the case of any Indebtedness issued with original issue discount, only the accreted value of the Indebtedness shall be included; and
(xiv) in the case of Interest Swap Obligations, the amount of Indebtedness in respect thereof shall be the termination value of the agreement or arrangement giving rise to such obligations that would be payable by such Person at such time.
(e) In the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described in clause (b) of this paragraph. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (or that is a Non-Recourse Restricted Subsidiary designated to be a Restricted SubsidiarySection 4.06, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding at the time such Person becomes such a Restricted Subsidiary of the Company or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company shall be deemed to have been Incurred, as the case may be, at the time such Person becomes such a Restricted Subsidiary of the Company, or is merged with or into or consolidated with the Company or a Restricted Subsidiary in its sole discretion, shall be entitled to divide and classify an item of Indebtedness in more than one of the Companytypes of Indebtedness described in clause (b) of this Section 4.06, and may change the classification of an item of Indebtedness (or any portion thereof) to any other type of Indebtedness described in clause (b) of this Section 4.06 at any time. In determining the amount of Indebtedness outstanding under one of the types of Indebtedness described in clause (b) of this Section 4.06, any obligation of such Person or any other Person arising under any guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness shall be disregarded so long as it is permitted to be incurred by the Person or Persons incurring such obligation.
Appears in 1 contract
Limitation on Incurrence of Additional Indebtedness. The Company will not, and will not permit any of its Restricted Subsidiaries to, after the Issue Date, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an acquisition), or otherwise become responsible for, contingently or otherwise (individually or collectively, to "Incur" or, as appropriate, an "Incurrence"), any Indebtedness. Neither the accrual of interest (including the issuance of "pay in kind" securities or similar instruments in respect of such accrued interest) pursuant to the terms of Indebtedness Incurred in compliance with this covenant, nor the accretion of original issue discount, nor the mere extension of the maturity of any Indebtedness shall be deemed to be an Incurrence of Indebtedness. Notwithstanding the foregoing, if there exists no Default or Event of Default immediately prior and subsequent thereto, the Company may incur Incur Indebtedness and any Restricted Subsidiary may Incur Acquired Indebtedness if the Company's Annualized Operating Cash Flow Ratio, after giving effect to the Incurrence of such Indebtedness, would have been less than 8 8.5 to 11.0 at any time prior to December 31, 2000 and 8.0 to 1.0 thereafter, and the application of the proceeds therefrom. In addition, if the foregoing limitations will not apply to the Incurrence of the following; provided that, except in the case of clauses (i), (vii), (viii) and (xi) below, there exists no Default or Event of Default immediately prior and subsequent thereto, the foregoing limitations will not apply to the Incurrence of :
(i) Indebtedness by of the Company or any of its Restricted Subsidiaries constituting Existing Indebtednessunder a Credit Facility in an aggregate principal amount at any one time outstanding not to exceed $1.0 billion, reduced by repayments of and (a) permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and by repayments and 4.14, (b) permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereofthereof (to the extent actually made), (iic) Indebtedness, in an aggregate the principal amount not in excess of $525,000,000, permitted under the Credit Agreement, reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 Old Notes that at the relevant date of determination is outstanding after consummation of the Merger and the transactions consummated substantially contemporaneously therewith (other than Old Notes which have been properly defeased) and (bd) an amount equal to the aggregate amount of any Indebtedness Incurred outstanding pursuant to clause (xxiv), below, so long as such amounts Incurred pursuant to clause (x) remain outstanding; provided that, if there exists a Default or an Event of Default immediately prior or subsequent thereto, the Company and its Restricted Subsidiaries may Incur Indebtedness pursuant to this clause ;
(ii) so long as Indebtedness of a Restricted Subsidiary under one or more bank credit facilities provided such Indebtedness could be incurred by the proceeds from such Incurrence are not used directly to pay any amounts owing Issuer under the Annualized Operating Cash Flow Ratio provision set forth in respect the second paragraph of any Indebtedness, including, without limitation, principal, interest and commitment fees, other than with respect to the Notes and the Holdings Securities, this covenant;
(iii) Indebtedness of the Company evidenced by the Securities, (iv)(A) Permitted Acquisition Indebtedness by the Company that satisfies the provisions of clause (x) of the definition thereof or (B) Permitted Acquisition Indebtedness by any Restricted Subsidiary that satisfies the provisions of clause (y) of the definition thereof, (v) Indebtedness between the Company and any Restricted Subsidiary of the Company or between Restricted Subsidiaries of the Company, provided that, in the case of Indebtedness of the Company, such obligations shall be unsecured and subordinated in all respects to the Holders' rights pursuant to the Securities, and the date of any event that causes a Restricted Subsidiary no longer to be a Restricted Subsidiary shall be an Incurrence Date with respect to such Indebtedness, (vi) Capitalized Lease Obligations and Purchase Money Indebtedness in an aggregate amount or aggregate principal amount, as the case may be, outstanding at any time not to exceed in the aggregate $15,000,000, provided that in the case of Purchase Money Indebt edness, such Indebtedness shall not constitute less than 75% nor more than 100% of the cost (determined in accordance with GAAP) to the Company or such Restricted Subsidiary of the property purchased or leased with the proceeds thereof, (vii) Indebtedness of the Company or any Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company to the extent none of the foregoing results in the obligation to repay an obligation for money borrowed by any Person and are limited in aggregate amount to no greater than 10% of the fair market value of such business, assets or Restricted Subsidiary so disposed of, (viii) any guarantee by any Restricted Subsidiary of any Senior Indebtedness Incurred in compliance with this Section 4.12, (ix) Indebtedness of the Company or any Restricted Subsidiary under standby letters of credit or xxxx bursement obligations with respect thereto issued in the ordinary course of busi ness and consistent with industry practices limited in aggregate amount to $5,000,000 at any one time outstanding, (x) Indebtedness of the Company (other than Indebtedness permitted by clauses (i) through (ix) or (xi) hereof) not to exceed $100,000,000 at any one time outstanding and (xi) Refinancing Indebted ness Incurred to extend, renew, replace or refund Indebtedness permitted under clauses (i) (as so reduced in amount), (ii) (as so reduced in amount), (iii), (iv) and (xi) of this paragraph. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (or that is a Non-Recourse Restricted Subsidiary designated to be a Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding at the time such Person becomes such a Restricted Subsidiary of the Company or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company shall be deemed to have been Incurred, as the case may be, at the time such Person becomes such a Restricted Subsidiary of the Company, or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company.;
Appears in 1 contract
Limitation on Incurrence of Additional Indebtedness. The After the Issue Date, the Company will not, and will not permit any of its Restricted Subsidiaries to, after the Issue Date, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an acquisition), or otherwise become responsible for, contingently or otherwise (individually or collectively, to "Incur" or, as appropriate, an "Incurrence"), any Indebtedness. Neither the accrual of interest (including the issuance of "pay in kind" securities or similar instruments in respect of such accrued interest) pursuant to the terms of Indebtedness Incurred in compliance with this covenant, nor the accretion of original issue discount, nor the mere extension of the maturity of any Indebtedness shall be deemed to be an Incurrence of Indebtedness. Notwithstanding the foregoing, if there exists no Default or Event of Default immediately prior and subsequent thereto, (x) the Company may incur Incur Indebtedness if, after giving effect to the Incurrence of such Indebtedness, the Company's Annualized Operating Cash Flow Ratio would have been less than 8.5 to 1 and (y) any Restricted Subsidiary may Incur Indebtedness if the Companysuch Restricted Subsidiary's Annualized Operating Cash Flow Ratio, after giving effect to the Incurrence of such Indebtedness, would have been less than 8 8.0 to 1. In addition, if there exists no Default or Event of Default immediately prior and subsequent thereto, the foregoing limitations will not apply to the Incurrence of of:
(i) Indebtedness by the Company or any of its Restricted Subsidiaries constituting Existing Indebtedness, reduced by repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in under Section 4.15 and by repayments and permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereof, ;
(ii) Indebtedness, in an aggregate principal amount not in excess of $525,000,000, permitted under the Credit AgreementFacility, reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and (b) an amount equal to the sum of (A) the outstanding principal amount of the PCW Secured Notes and (B) the aggregate amount of Indebtedness Incurred pursuant to clause (x), below, ) below to refinance the PCW Secured Notes or the Credit Facility so long as such amounts Incurred pursuant to clause (x) remain outstanding; provided that, if there exists a Default or an Event of Default immediately prior or subsequent thereto, the Company and its Restricted Subsidiaries may Incur Indebtedness pursuant to this clause (ii) so long as the proceeds from such Incurrence are not used used, directly or indirectly, to pay any amounts owing in respect of any Indebtedness, including, without limitation, principal, interest and commitment fees, other than with respect to the Notes and the Holdings Securities, ;
(iii) Indebtedness of the Company evidenced by the Securities, ;
(iv)(Aiv) (a) Permitted Acquisition Indebtedness by of the Company or any Restricted Subsidiaries that satisfies the provisions of clause (x) of the definition thereof or (Bb) Permitted Acquisition Indebtedness by of any Restricted Subsidiary that satisfies the provisions of clause (y) of the definition thereof, ;
(v) Indebtedness between the Company and any Restricted Subsidiary of the Company or between Restricted Subsidiaries of the Company; provided, provided however, that, in the case of Indebtedness of the Company, such obligations shall be unsecured and subordinated in all respects to the Holders' rights pursuant to the Securities, and the date of any event that causes a Restricted Subsidiary no longer to be a Restricted Subsidiary shall be an Incurrence Date with respect to such Indebtedness, ;
(vi) Capitalized Lease Obligations and Purchase Money Indebtedness in an aggregate amount or aggregate principal amount, as the case may be, outstanding at any time not to exceed in the aggregate $15,000,000, provided that in the case of Purchase Money Indebt edness, such Indebtedness shall not constitute less than 75% nor more than 100% of the cost (determined in accordance with GAAP) to the Company or such Restricted Subsidiary of the property purchased or leased with the proceeds thereof, ;
(vii) Indebtedness of the Company or any Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company to the extent none of the foregoing results in the obligation to repay an obligation for money borrowed by any Person and are limited in aggregate amount to no greater than 10% of the fair market value of such business, assets or Restricted Subsidiary so disposed of, ;
(viii) any guarantee by any Restricted Subsidiary of any Senior Indebtedness Incurred in compliance with this Section 4.12, (ix) Indebtedness of the Company or any Restricted Subsidiary under standby letters of credit or xxxx bursement reimbursement obligations with respect thereto issued in the ordinary course of busi ness business and consistent with industry practices limited in aggregate amount to $5,000,000 at any one time outstanding, ;
(xix) Indebtedness of the Company or any Restricted Subsidiary (other than Indebtedness permitted by clauses the first paragraph of this Section 4.12 or clause (i) through (ixviii) or (xix) hereofof this Section 4.12) not to exceed $100,000,000 at any one time outstanding and outstanding; and
(xix) Refinancing Indebted ness Indebtedness Incurred to extend, renew, replace or refund Indebtedness permitted under the first paragraph of this Section 4.12 or clauses (i) (as so reduced in amount), (ii) (as so reduced in amount), (iii), (iv) and (xix) of this paragraph. For purposes of determining compliance with this Section 4.12, in the event that an item of Indebtedness meets the criteria of more than one of the categories described above or is entitled to be incurred pursuant to the second paragraph of this Section 4.12, the Company shall, in its sole discretion, classify such item of Indebtedness in any manner that complies with this Section 4.12 and such item of Indebtedness will be treated as having been incurred pursuant to only one of such clauses or pursuant to the second paragraph of this Section 4.12. In addition, the Company may, at any time, change the classification of an item of Indebtedness (or any portion thereof) to any other clause or to the second paragraph of this Section, provided that the Company would be permitted to Incur such item of Indebtedness (or such portion thereof) pursuant to such other clause or the second paragraph of this Section 4.12, as the case may be, at such time of reclassification. Indebtedness of any Person that is not a Restricted Subsidiary of the Company (or that is a Non-Recourse Restricted Subsidiary designated to be a Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding at the time such Person becomes such a Restricted Subsidiary of the Company or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company shall be deemed to have been Incurred, as the case may be, at the time such Person becomes such a Restricted Subsidiary of the Company, or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company.
Appears in 1 contract
Limitation on Incurrence of Additional Indebtedness. The Company will not, and will not permit any of its Restricted Subsidiaries to, after the Issue Date, directly or indirectly, issue, create, incur, assume, guarantee or otherwise directly or indirectly become liable for (including as a result of an acquisition), or otherwise become responsible for, contingently or otherwise (individually or collectively, to "Incur" or, as appropriate, an "Incurrence"), any Indebtedness. Neither the accrual of interest (including the issuance of "pay in kind" securities or similar instruments in respect of such accrued interest) pursuant to the terms of Indebtedness Incurred in compliance with this covenant, nor the accretion of original issue discount, nor the mere extension of the maturity of any Indebtedness shall be deemed to be an Incurrence of Indebtedness. Notwithstanding the foregoing, if there exists no Default or Event of Default immediately prior and subsequent thereto, the Company may incur Incur Indebtedness and any Restricted Subsidiary may Incur Acquired Indebtedness if the Company's Annualized Operating Cash Flow Ratio, after giving effect to the Incurrence of such Indebtedness, would have been less than 8 8.5 to 11.0 at any time prior to December 31, 2000 and 8.0 to 1.0 thereafter, and the application of the proceeds therefrom. In addition, if the foregoing limitations will not apply to the Incurrence of the following; provided that, except in the case of clauses (i), (vii), (viii) and (xi) below, there exists no Default or Event of Default immediately prior and subsequent thereto, the foregoing limitations will not apply to the Incurrence of :
(i) Indebtedness by of the Company or any of its Restricted Subsidiaries constituting Existing Indebtednessunder a Credit Facility in an aggregate principal amount at any one time outstanding not to exceed $1.0 billion, reduced by repayments of and (a) permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and by repayments and 4.14, (b) permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereofthereof (to the extent actually made), (iic) Indebtedness, in an aggregate the principal amount not in excess of $525,000,000, permitted under the Credit Agreement, reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 Old Notes that at the relevant date of determination is outstanding after consummation of the Merger and the transactions consummated substantially contemporaneously therewith (other than Old Notes which have been properly defeased) and (bd) an amount equal to the aggregate amount of any Indebtedness Incurred outstanding pursuant to clause (xxiv), below, so long as such amounts Incurred pursuant to clause (x) remain outstanding; provided that, if there exists a Default or an Event of Default immediately prior or subsequent thereto, the Company and its Restricted Subsidiaries may Incur Indebtedness pursuant to this clause ;
(ii) so long as Indebtedness of a Restricted Subsidiary under one or more bank credit facilities provided such Indebtedness could be incurred by the proceeds from such Incurrence are not used directly to pay any amounts owing Issuer under the Annualized Operating Cash Flow Ratio provision set forth in respect the second paragraph of any Indebtedness, including, without limitation, principal, interest and commitment fees, other than with respect to the Notes and the Holdings Securities, this covenant;
(iii) Indebtedness of the Company evidenced by the Securities, ;
(iv)(Aiv) Permitted Acquisition Indebtedness represented by the Company Old Notes or the Convertible Notes that satisfies the provisions of clause (x) remain outstanding after consummation of the definition thereof or (B) Permitted Acquisition Indebtedness by any Restricted Subsidiary that satisfies Merger and the provisions of clause (y) of the definition thereof, transactions consummated substantially contemporaneously therewith;
(v) Indebtedness between the Company and any Restricted Subsidiary of the Company or between Restricted Subsidiaries of the Company, provided that, in the case of Indebtedness of the Company, such obligations shall be unsecured and subordinated in all respects to the Holders' rights pursuant to the Securities, Securities and the date of any event that causes a Restricted Subsidiary no longer to be a Restricted Subsidiary shall be an Incurrence Date with respect to such Indebtedness, Company's guarantee under the Credit Facility;
(vi) Capitalized Lease Obligations and Purchase Money Indebtedness in an aggregate amount or aggregate principal amount, as the case may be, outstanding at any time not to exceed in the aggregate $15,000,00020,000,000, provided that in the case of Purchase Money Indebt ednessIndebtedness, such Indebtedness shall not constitute less than 75% nor more than 100% of the cost (determined in accordance with GAAP) to the Company or such Restricted Subsidiary of the property purchased or leased with the proceeds thereof, ;
(vii) Indebtedness of the Company or any Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company to the extent none of the foregoing results in the obligation to repay an obligation for money borrowed by any Person and are limited in aggregate amount to no greater than 10% of the fair market value of such business, assets or Restricted Subsidiary so disposed of, ;
(viii) any guarantee by any Restricted Subsidiary made in accordance with the provisions of any Senior Section 4.20;
(ix) Indebtedness Incurred by the Company or any of its Restricted Subsidiaries in compliance connection with the acquisition of a new Restricted Subsidiary, the majority of whose revenues for the most recent twelve months for which audited or unaudited financial statements are available are from a Related Business, or of property, business or assets which, or Capital Stock of a Person all or substantially all of whose assets, are a type generally used in a Related Business; provided that such Indebtedness was Incurred by the prior owner of such Restricted Subsidiary, property, business, assets or Capital Stock prior to such contemplation of, such acquisition by the Company or one of its Restricted Subsidiaries and was not Incurred in connection with, or in contemplation of, such acquisition by the Company or one of its Restricted Subsidiaries; and provided, further, that the principal amount (or accreted value, as applicable) of such Indebtedness, together with any other outstanding Indebtedness Incurred pursuant to this Section 4.12, clause (ix), does not exceed $25.0 million at any one time outstanding;
(x) Indebtedness of the Company or any Restricted Subsidiary under standby letters of credit or xxxx bursement reimbursement obligations with respect thereto issued in the ordinary course of busi ness business and consistent with industry practices limited in aggregate amount to $5,000,000 5.0 million at any one time outstanding;
(xi) Interest Rate Protection Obligations relating to (A) Indebtedness of the Company or any Restricted Subsidiary (which Indebtedness is otherwise permitted to be Incurred under this covenant) or (B) Indebtedness for which a lender has provided a commitment in an amount reasonably anticipated to be Incurred by the Company or any Restricted Subsidiary in the 12 months after such Interest Rate Protection Obligations has been Incurred; provided, however, that the notional principal amount of such Interest Rate Protection Obligation does not exceed the principal amount of the Indebtedness (xincluding Indebtedness subject to commitments) to which such Interest Rate Protection Obligations relate;
(xii) Indebtedness of the Company (other than Indebtedness permitted by clauses (i) through (ixxi) or (xixiv) hereof) not to exceed $100,000,000 75.0 million at any one time outstanding and outstanding;
(xixiii) Refinancing Indebted ness Indebtedness Incurred to extend, renew, replace or refund Indebtedness permitted under clauses (iiii) (as so reduced in amount), (ii) (as so reduced in amount), (iii), or (iv) of this paragraph (plus any reasonably determined prepayment premium necessary to accomplish such refinancing and such reasonable fees and expenses incurred in connection therewith); and
(xixiv) Refinancing Indebtedness Incurred by the Company to extend, renew, replace or refund Indebtedness permitted under clause (i) of this paragraphparagraph (plus any reasonably determined prepayment premium necessary to accomplish such refinancing and such reasonable fees and expenses incurred in connection therewith). Indebtedness For purposes of any Person that is not a Restricted Subsidiary clause (i)(c) above, the transactions consummated substantially contemporaneously with the Merger may include, without limitation, the repayment of Old Notes outstanding Merger Date within one Business Day of the Company Merger Date if the Company, upon consummation of the Merger, shall have, pursuant to such instruments acceptable to the agent lender under the Credit Facility, (or that is a Non-Recourse Restricted Subsidiary designated i) caused to be a Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding at the time such Person becomes such a Restricted Subsidiary of the Company or is merged with or into or consolidated with the Company set aside sufficient funds borrowed by it or a Restricted Subsidiary under the Credit Facility to make such repayment and (ii) shall have given irrevocable instructions to the lender under such Credit Facility, in a form acceptable to such agent lender, to direct borrowed funds to the repayment of such Old Notes no later than the Company shall be deemed to have been Incurred, as Business Day immediately following the case may be, at the time such Person becomes such a Restricted Subsidiary of the Company, or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the CompanyMerger Date.
Appears in 1 contract
Samples: Indenture (Pricellular Corp)
Limitation on Incurrence of Additional Indebtedness. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, after the Issue DateIncur, directly or indirectly, issueany Indebtedness; provided, createhowever, incurthat the Company, assumeSCI LLC or any Guarantor may Incur Indebtedness if on the date of such Incurrence and after giving effect thereto, guarantee the Consolidated Coverage Ratio would be greater than 2.25:1; provided further, however, that the Company, SCI LLC or otherwise directly any Guarantor may Incur Indebtedness under any First Lien Credit Facilities pursuant to this Section 4.03(a) only if on the date of such Incurrence and after giving effect thereto (i) the Consolidated Coverage Ratio would be greater than 2.75:1 and (ii) the total aggregate principal amount of Indebtedness outstanding under all First Lien Credit Facilities and any unused credit commitment thereunder does not exceed $400 million; provided further, however, that the foregoing proviso shall not apply to any Incurrence of Indebtedness under the First Lien Credit Facilities that results from a consolidation, merger, conveyance, transfer or indirectly become liable for lease that is permitted by Article V so long as such Indebtedness is not Incurred in connection with or in contemplation of such transaction and the other Person involved in such transaction is not an Affiliate of the Company.
(including as a result of an acquisitionb) Notwithstanding Section 4.03(a), or otherwise become responsible forthe Company and, contingently or otherwise to the extent specified, its Restricted Subsidiaries may Incur the following Indebtedness (individually or collectively, the "Permitted Debt"):
(i) Bank Indebtedness of the Company, SCI LLC or any Guarantor and any Receivables Facility in an aggregate principal amount not to "Incur" or, as appropriate, an "Incurrence"), exceed $732.2 million less the aggregate amount of all prepayments of principal applied to permanently reduce any Indebtedness. Neither such Indebtedness after the accrual date of interest (including the issuance of "pay in kind" securities or similar instruments the Original Notes and the application of the proceeds therefrom;
(ii) Indebtedness in respect of a Receivables Facility in an aggregate principal amount not to exceed the lesser of (1) the amount of all prepayments of principal applied to permanently reduce Indebtedness under Section 4.03(b)(i) and (2) $100 million;
(iii) Indebtedness of the Company owed to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owed to and held by the Company or any other Restricted Subsidiary; provided, however, that (1) any subsequent issuance or transfer of any Capital Stock or any other event that results in any such accrued interest) pursuant Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of any such Indebtedness (except to the terms of Indebtedness Incurred in compliance with this covenant, nor the accretion of original issue discount, nor the mere extension of the maturity of any Indebtedness Company or another Restricted Subsidiary) shall be deemed deemed, in each case, to be an Incurrence of Indebtedness. Notwithstanding the foregoing, if there exists no Default or Event of Default immediately prior and subsequent thereto, the Company may incur Indebtedness if the Company's Annualized Operating Cash Flow Ratio, after giving effect to constitute the Incurrence of such Indebtedness by the issuer thereof, (2) if the Company or SCI LLC is the obligor on such Indebtedness, would have been less than 8 such Indebtedness is expressly subordinated to 1. In additionthe prior payment in full in cash of all obligations with respect to the Notes and (3) if a Guarantor is the obligor, if there exists no Default or Event such Indebtedness is subordinated in right of Default immediately prior and subsequent theretopayment to the Note Guarantee of such Guarantor;
(iv) Indebtedness represented by the Senior Subordinated Notes, the foregoing limitations will Guarantees of the Senior Subordinated Notes, the Junior Subordinated Note, the Notes (not apply including any Additional Notes), the Note Guarantees, the Exchange Notes, Guarantees of the Exchange Notes and any replacement Notes issued pursuant to this Indenture;
(v) Indebtedness outstanding on the Incurrence Closing Date (other than the Indebtedness described in clause (ii), (iii) or (iv) of this Section 4.03(b));
(vi) Indebtedness consisting of Refinancing Indebtedness Incurred in respect of any Indebtedness described in Section 4.03(a) and in clauses (iv), (v), (vi), (vii), (x) and (xiii) of this Section 4.03(b);
(vii) Indebtedness consisting of Guarantees of (i1) any Indebtedness permitted under Section 4.03(a), so long as the Person providing the Guarantee is a Guarantor or (2) any Indebtedness permitted under this Section 4.03(b);
(viii) Indebtedness by of the Company or any of its Restricted Subsidiaries constituting Existing in respect of worker's compensation claims, self-insurance obligations, performance bonds, bankers' acceptances, letters of credit, surety, appeal or similar bonds and completion guarantees provided by the Company and the Restricted Subsidiaries in the ordinary course of their business; provided, however, that upon the drawing of letters of credit for reimbursement obligations, including with respect to workers' compensation claims, or the Incurrence of other Indebtedness with respect to reimbursement type obligations regarding workers' compensation claims, such obligations are reimbursed within 30 days following such drawing or Incurrence;
(ix) Indebtedness under Interest Rate Agreements and Currency Agreements entered into for bona fide hedging purposes of the Company in the ordinary course of business;
(x) Purchase Money Indebtedness, reduced mortgage financings and Capitalized Lease Obligations, in each case Incurred by repayments the Company, SCI LLC or any Restricted Subsidiary for the purpose of and permanent reductions in commitments in satisfaction financing all or any part of the Net Cash Proceeds application requirement set forth purchase price or cost of construction or improvement of property, plant or equipment used in Section 4.15 a Permitted Business, and by repayments and permanent reductions in amounts outstanding pursuant to scheduled amortizations and mandatory prepayments in accordance with the terms thereof, (ii) Indebtedness, in an aggregate principal amount not in excess of $525,000,000, permitted under the Credit Agreement, reduced by (a) repayments of and permanent reductions in commitments in satisfaction of the Net Cash Proceeds application requirement set forth in Section 4.15 and (b) an amount equal to the aggregate amount of Indebtedness Incurred pursuant to clause (x), below, so long as such amounts Incurred pursuant to clause (x) remain outstanding; provided that, if there exists a Default or an Event of Default immediately prior or subsequent thereto, the Company and its Restricted Subsidiaries may Incur Indebtedness pursuant to this clause (ii) so long as the proceeds from such Incurrence are not used directly to pay any amounts owing in respect of any Indebtedness, including, without limitation, principal, interest and commitment fees, other than with respect to the Notes and the Holdings Securities, (iii) Indebtedness of the Company evidenced by the Securities, (iv)(A) Permitted Acquisition Indebtedness by the Company that satisfies the provisions of clause (x) of the definition thereof or (B) Permitted Acquisition Indebtedness by any Restricted Subsidiary that satisfies the provisions of clause (y) of the definition thereof, (v) Indebtedness between the Company and any Restricted Subsidiary of the Company or between Restricted Subsidiaries of the Company, provided that, in the case of Indebtedness of the Company, such obligations shall be unsecured and subordinated in all respects to the Holders' rights pursuant to the Securities, and the date of any event that causes a Restricted Subsidiary no longer to be a Restricted Subsidiary shall be an Incurrence Date with respect to such Indebtedness, (vi) Capitalized Lease Obligations and Purchase Money Indebtedness in an aggregate amount or aggregate principal amount, as the case may be, outstanding 25 million at any one time not to exceed in the aggregate $15,000,000, provided that in the case of Purchase Money Indebt edness, such Indebtedness shall not constitute less than 75% nor more than 100% of the cost outstanding.
(determined in accordance with GAAP) to the Company or such Restricted Subsidiary of the property purchased or leased with the proceeds thereof, (viixi) Indebtedness of the Company or any of its Restricted Subsidiary Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five business days of Incurrence;
(xii) Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, Incurred or from guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or its Restricted Subsidiaries pursuant to such agreements, in any case Incurred assumed in connection with the disposition of any business, assets or Restricted Subsidiary Capital Stock of the Company to or any Restricted Subsidiary; provided that (1) the extent none maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the Company and its Subsidiaries in connection with such disposition and (2) such Indebtedness is not reflected in the balance sheet of the foregoing results in the obligation to repay an obligation for money borrowed by any Person and are limited in aggregate amount to no greater than 10% of the fair market value of such business, assets Company or Restricted Subsidiary so disposed of, (viii) any guarantee by any Restricted Subsidiary (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of any Senior Indebtedness Incurred in compliance with this Section 4.12, clause (ix2));
(xiii) Indebtedness of the Company or any of its Restricted Subsidiary under standby letters of credit or xxxx bursement obligations with respect thereto issued Subsidiaries that is Acquired Debt in the ordinary course of busi ness and consistent with industry practices limited in an aggregate principal amount to $5,000,000 at any one time outstanding, outstanding not to exceed $25 million; and
(xxiv) Indebtedness of the Company (other than Indebtedness permitted to be Incurred pursuant to Section 4.03(a) or any other clause of Section 4.03(b)) of the Company or any Restricted Subsidiary in an aggregate principal amount (or accreted value, as applicable) on the date of Incurrence that, when added to all other Indebtedness Incurred pursuant to this clause (xiv) and then outstanding, shall not exceed $50 million, of which up to $25 million may be Incurred by clauses Restricted Subsidiaries that are not Guarantors.
(c) Notwithstanding the foregoing, neither the Company nor SCI LLC shall Incur any Indebtedness pursuant to Section 4.03(b) above if the proceeds thereof are used, directly or indirectly, to repay, prepay, redeem, defease, retire, refund or refinance any Subordinated Indebtedness of such Person in reliance on Section 4.04(b)(ii) unless such Indebtedness shall be subordinated to the Notes to at least the same extent as such Subordinated Indebtedness.
(d) Notwithstanding any other provision of this Section 4.03, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may Incur pursuant to this Section 4.03 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rates of currencies. For purposes of determining compliance with this Section 4.03, (i) through (ix) Indebtedness Incurred pursuant to the Credit Agreement prior to or (xi) hereof) not on the Closing Date shall be treated as Incurred pursuant to exceed $100,000,000 at any one time outstanding and (xi) Refinancing Indebted ness Incurred to extend, renew, replace or refund Indebtedness permitted under clauses (i) (as so reduced in amountSection 4.03(b)(i), (ii) (as so reduced Indebtedness permitted by this Section 4.03 need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in amount)part by one such provision and in part by one or more other provisions of this Section 4.03 permitting such Indebtedness, (iii)) in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in this Section 4.03, the Company, in its sole discretion, shall classify such Indebtedness and only be required to include the amount of such Indebtedness in one of such clauses and (iv) the aggregate amount of any Indebtedness Guaranteed pursuant to Section 4.03(b)(vii) will be included in the calculation of Indebtedness, but the corresponding amount of the Guarantee will not be so included.
(e) Accrual of interest, the accretion of accreted value and the payment of interest in the form of additional Indebtedness will not be deemed to be an Incurrence of Indebtedness for purposes of this Section 4.03.
(f) For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that (i) the U.S. dollar-equivalent principal amount of any such Indebtedness outstanding or committed on the Closing Date shall be calculated based on the relevant currency exchange rate in effect on the Issue Date, and (xiii) of this paragraph. if such Indebtedness of any Person that is not Incurred to Refinance other Indebtedness denominated in a Restricted Subsidiary of foreign currency, and such Refinancing would cause the Company (or that is a Nonapplicable U.S. dollar-Recourse Restricted Subsidiary designated denominated restriction to be a Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary), which Indebtedness is outstanding exceeded if calculated at the time relevant currency exchange rate in effect on the date of such Person becomes Refinancing, such a Restricted Subsidiary of the Company or is merged with or into or consolidated with the Company or a Restricted Subsidiary of the Company U.S. dollar-denominated restriction shall be deemed not to have been Incurred, exceeded so long as the case may beprincipal amount of such Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being Refinanced. The principal amount of any Indebtedness Incurred to Refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being Refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such Refinancing.
(g) The Company will not, and will not permit SCI LLC to, make any amendment to the Senior Subordinated Notes or the Junior Subordinated Note which (i) makes either the Senior Subordinated Notes or the Junior Subordinated Note subordinated in right of payment to the Notes to a lesser extent than on the Closing Date or (ii) results or could result in any cash payment of principal, premium or interest in respect of either the Senior Subordinated Notes or the Junior Subordinated Note becoming due at any time prior to the time date such Person becomes such a Restricted Subsidiary payment would have been required in accordance with the terms of each of the Company, Senior Subordinated Notes or is merged with or into or consolidated with the Company or a Restricted Subsidiary of Junior Subordinated Note as in effect on the CompanyClosing Date.
Appears in 1 contract
Samples: Indenture (On Semiconductor Corp)
