set forth
in Section 6.02) and for so long as this Agreement shall remain in effect, or
the Total Commitments or Letters of Credit remain outstanding or the principal
of or interest on any Loan, Fees or any other expenses or amounts payable under
any Loan Document shall remain unpaid, unless the Required Lenders shall
otherwise consent in writing, it will not, and will not cause or permit any of
their respective Subsidiaries to:
10.01.
Indebtedness.
Create, incur, assume or permit to exist any
Indebtedness or Attributable Indebtedness; provided that Holdings and its
Subsidiaries may incur Indebtedness if, after giving effect to the incurrence
thereof and any substantially simultaneous application of proceeds thereof, the
pro forma Interest Coverage Ratio would be greater than 2:00 to 1.00 (such test,
the "Incurrence Test").
Notwithstanding the foregoing, Holdings and its
Subsidiaries may, without duplication, create, incur, assume or permit to exist:
(A)
THE INDEBTEDNESS CREATED HEREUNDER AND UNDER THE OTHER LOAN
DOCUMENTS;
(B)
THE INDEBTEDNESS (OTHER THAN INDEBTEDNESS UNDER THE TERM LOAN
FACILITY) EXISTING ON THE FUNDING DATE AFTER GIVING EFFECT TO THE CONSUMMATION
OF THE PLAN OF REORGANIZATION AND WHICH IS CONTEMPLATED BY THE PLAN OF
REORGANIZATION ON SUCH DATE AND ANY PERMITTED REFINANCING INDEBTEDNESS IN
RESPECT OF THEREOF;
(C)
INDEBTEDNESS CONSISTING OF PERMITTED UNSECURED NOTES ISSUED ON OR
PRIOR TO THE FUNDING DATE, PROVIDED THAT THE REQUIREMENTS OF SECTION 2.09(C) AND
(D) OF THE TERM LOAN CREDIT AGREEMENT AS IN EFFECT ON THE DATE HEREOF ARE
SATISFIED IN CONNECTION THEREWITH, AND ANY PERMITTED REFINANCING INDEBTEDNESS IN
RESPECT OF THEREOF;
(D)
INTERCOMPANY LOANS AND ADVANCES PERMITTED BY SECTION 10.04 AND
WHICH, (I) IF OWED TO A U.S. LOAN PARTY, ARE EVIDENCED BY A PROMISSORY NOTE AND
PLEDGED PURSUANT TO THE GUARANTEE AND COLLATERAL AGREEMENT AND (II) IF OWED BY A
LOAN PARTY, ARE SUBORDINATED TO THE LOAN DOCUMENT OBLIGATIONS ON TERMS
REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT;
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(E)
INDEBTEDNESS OF ANY FOREIGN SUBSIDIARY OF HOLDINGS AND ANY
GUARANTEES THEREOF, PROVIDED THAT SUCH INDEBTEDNESS SHALL NOT BE GUARANTEED BY
OR OTHERWISE BE RECOURSE TO ANY LOAN PARTY, EXCEPT AS PERMITTED BY
SECTION 10.04(C) OR (K); PROVIDED FURTHER THAT THE AGGREGATE PRINCIPAL AMOUNT OF
SUCH INDEBTEDNESS AT ANY TIME OUTSTANDING SHALL NOT EXCEED $35,000,000;
(F)
INDEBTEDNESS UNDER THE TERM LOAN FACILITY, TOGETHER WITH ANY
PERMITTED REFINANCING INDEBTEDNESS WITH RESPECT THERETO, INCLUDING GUARANTEES
THEREOF, IN AN AGGREGATE PRINCIPAL AMOUNT NOT AT ANY TIME IN EXCESS OF
$1,600,000,000 (AS REDUCED BY THE AGGREGATE PRINCIPAL AMOUNT (IN EACH CASE, AT
THE TIME OF ISSUANCE THEREOF) OF (I) PERMITTED UNSECURED NOTES PERMITTED BY
PARAGRAPH (C) ABOVE AND (II) PERMITTED NOTES PERMITTED BY PARAGRAPH (M) BELOW),
PROVIDED THAT ANY INCREMENTAL FINANCINGS IN EXCESS OF $1,200,000,000 (INCLUDING
ANY INCREMENTAL FINANCINGS IN EXCESS OF $1,200,000,000 INCURRED THROUGH
PERMITTED REFINANCING INDEBTEDNESS) UNDER THE TERM LOAN FACILITY SHALL BE ON
SUBSTANTIALLY THE SAME TERMS (OTHER THAN FEES AND OTHER PRICING TERMS (OTHER
THAN INTEREST RATES) AND, SUBJECT TO PRO FORMA COMPLIANCE WITH THE INCURRENCE
TEST, INTEREST RATES AND, PROVIDED THAT THE