Incurrence of Debt. The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create, incur, assume, guarantee, or otherwise become directly or indirectly liable with respect to, any Debt, other than: (a) Debt evidenced by the Notes; (b) Debt of the Company and its Restricted Subsidiaries outstanding on the date of the Closing and disclosed in Schedule 5.15 (other than Debt of the Company under the Credit Agreement or under the MLP Note Guaranty referred to in Section 10.2), and any extensions, refundings, renewals and refinancings (collectively, a "Refinancing") thereof, provided that (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, (ii) the maturity date of the Debt resulting from such Refinancing shall not be earlier than the maturity date of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced and (iv) no Default or Event of Default exists at the time of such Refinancing; (c) Debt of the Company and its Restricted Subsidiaries if on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt: (i) no Default or Event of Default exists; and (ii) any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and (iii) the ratio of Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date to Consolidated Interest Expense is not less than 2.25 to 1; and (iv) the ratio of Consolidated Debt to Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date is not greater than 5.00 to 1; (d) Debt of the Company and its Restricted Subsidiaries incurred under a Working Capital Facility if, on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other such Debt, the Debt outstanding thereunder will not exceed Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date, provided that there shall have been during the immediately preceding four consecutive fiscal quarters a period of at least 30 consecutive days on each of which the Company and its Restricted Subsidiaries would have been permitted to (but did not) incur on such day under Section 10.1(c) (without reference to the condition stated in clause (i) thereof) Debt in the amount of the average daily balance of Debt outstanding under the Working Capital Facility for such 30-day period, provided further that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; (e) Subordinated Debt of the Company if on the date the Company becomes liable with respect to any such Subordinated Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Subordinated Debt of the Company shall not exceed $50,000,000; (f) Debt of the Company and its Restricted Subsidiaries to a seller of assets or shares purchased by the Company or any Restricted Subsidiary if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Debt of the Company to all such sellers of assets or shares shall not exceed $60,000,000, provided that the agreement or instrument pursuant to which such Debt is incurred (i) contains no financial covenants more restrictive on the Company or its Restricted Subsidiaries than those contained in this Agreement and (ii) contains no events of default (other than in respect of payment of principal and interest on such Debt and in respect of the accuracy of representations and warranties made by the Company or its Restricted Subsidiaries thereunder) which are capable of occurring prior to the occurrence of any Event of Default, and provided, further, that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and (g) Debt of the Company under the "Facility B Commitments" or the "Facility C Commitments" pursuant to the Credit Agreement if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the incurrence of such Debt would be permitted under Section 10.1(c) and any Refinancing thereof, provided that (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, (ii) the maturity date of the Debt resulting from such Refinancing shall not be earlier than the maturity date of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced, and (iv) the other terms applicable to the Debt resulting from such Refinancing shall not be more onerous to the Company than the terms applicable to the Debt being Refinanced, provided further that the aggregate amount of all such Debt of the Company permitted by this clause (g) shall not exceed $75,000,000. For the purposes of this Section 10.1, any Person becoming a Restricted Subsidiary after the date hereof shall be deemed, at the time it becomes a Restricted Subsidiary, to have incurred all of its then outstanding Debt, and any Person Refinancing any Debt shall be deemed to have incurred such Debt at the time of such Refinancing.
Appears in 1 contract
Sources: Note Purchase Agreement (Ferrellgas Partners Finance Corp)
Incurrence of Debt. The (a) Neither Petro Holdings nor the Company will not, and will not permit any Restricted Subsidiary towill, directly or indirectly, create, incur, assume, guarantee, or otherwise become directly or indirectly liable with respect to, any Debt, other than:
(ai) Debt evidenced by the Notes;
(b) Debt of the Company and its Restricted Subsidiaries outstanding on the date of the Closing and disclosed in Schedule 5.15 (other than Debt of the Company under the Credit Agreement or Working Capital Facility, so long as (x) amounts outstanding thereunder do not exceed, at any time, the lesser of (1) 85% of eligible accounts receivable and (2) $123,000,000, and (y) there shall have been during the immediately preceding 365 days a period of at least 45 consecutive days on which there shall have been no Debt outstanding under the MLP Note Guaranty referred Working Capital Facility;
(ii) Debt of the Company or Petro Holdings issued in exchange for, or all of the proceeds of which are used to in Section 10.2)refinance, and any extensions, refundings, renewals and refinancings (collectively, a "Refinancing") thereof, outstanding Debt provided that (ix) the principal amount of such Debt shall not exceed the principal amount of the Debt resulting from so exchanged or refinanced, (y) such Refinancing Debt (1) shall not exceed mature prior to the outstanding principal amount of such Debt being Refinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, (ii) the stated maturity date of the Debt resulting from such Refinancing so exchanged or refinanced and (2) shall not be earlier have a Weighted Average Life to Maturity equal to or greater than the maturity date remaining Weighted Average Life to Maturity of the Star Gas Partners, L.P. Note Purchase Agreement Petro Holdings, Inc. Petroleum Heat and Power Co., Inc. Debt being Refinancedso exchanged or refinanced, and (z) if the Debt so exchanged or refinanced is subordinate in ranking to the Notes, such new Debt shall also be subordinate to the Notes;
(iii) the average life to maturity undrawn balance of the Debt resulting from such Refinancing shall not be less than the average life to maturity Letter of the Debt being Refinanced and Credit Facility;
(iv) no Default or Event Debt of Default exists at Petro Holdings under the time of such Refinancing;Parent Guarantee Agreement relating to the Credit Agreement, the 1999 Senior Notes, the 2000 Senior Notes, the Notes and any other Parity Debt; and
(cv) Debt of the Company and its Restricted Subsidiaries if or Petro Holdings in addition to that permitted under clauses (i) through (iv) above, provided that on the date the Company or such Restricted Subsidiary Petro Holdings becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt:
(i) no Default or Event of Default exists; and
(ii) any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(iii) the ratio of Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date to Consolidated Interest Expense is not less than 2.25 to 1; and
(iv) the ratio of Consolidated Debt to Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date is not greater than 5.00 to 1;
(d) Debt of the Company and its Restricted Subsidiaries incurred under a Working Capital Facility if, on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other such Debt, the Debt outstanding thereunder will not exceed Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date, provided that there shall have been during the immediately preceding four consecutive fiscal quarters a period of at least 30 consecutive days on each of which the Company and its Restricted Subsidiaries would have been permitted to (but did not) incur on such day under Section 10.1(c) (without reference to the condition stated in clause (i) thereof) Debt in the amount of the average daily balance of Debt outstanding under the Working Capital Facility for such 30-day period, provided further that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3;
(e) Subordinated Debt of the Company if on the date the Company becomes liable with respect to any such Subordinated Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Subordinated Debt of the Company shall not exceed $50,000,000;
(f) Debt of the Company and its Restricted Subsidiaries to a seller of assets or shares purchased by the Company or any Restricted Subsidiary if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Debt of the Company to all such sellers of assets or shares shall not exceed $60,000,000, provided that the agreement or instrument pursuant to which such Debt is incurred (i) contains no financial covenants more restrictive on the Company or its Restricted Subsidiaries than those contained in this Agreement and (ii) contains no events of default (other than in respect of payment of principal and interest on such Debt and in respect of the accuracy of representations and warranties made by the Company or its Restricted Subsidiaries thereunder) which are capable of occurring prior to the occurrence of any Event of Default, and provided, further, that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(g) Debt of the Company under the "Facility B Commitments" or the "Facility C Commitments" pursuant to the Credit Agreement if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the incurrence of such Debt would be permitted under Section 10.1(c) and any Refinancing thereof, provided that (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, (ii) the maturity date of the Debt resulting from such Refinancing shall not be earlier than the maturity date of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced, and (iv) the other terms applicable to the Debt resulting from such Refinancing shall not be more onerous to the Company than the terms applicable to the Debt being Refinanced, provided further that the aggregate amount of all such Debt of the Company permitted by this clause (g) shall not exceed $75,000,000. For the purposes of this Section 10.1, any Person becoming a Restricted Subsidiary after the date hereof shall be deemed, at the time it becomes a Restricted Subsidiary, to have incurred all of its then outstanding Debt, and any Person Refinancing any Debt shall be deemed to have incurred such Debt at the time of such Refinancing.,
Appears in 1 contract
Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiary toSubsidiaries to Incur any Debt (including Acquired Debt); provided that the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, directly or indirectlyimmediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, create, incur, assume, guarantee, or otherwise become directly or indirectly liable with respect to, any Debt, other than:
(a) Debt evidenced by the Notes;
(b) Debt Total Net Leverage Ratio of the Company and its Restricted Subsidiaries, determined on a Pro Forma Basis, including as if any such Debt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the four fiscal quarter period had been Incurred and the proceeds thereof had been applied at the beginning of the four fiscal quarter period, and any other Debt repaid since the beginning of the four fiscal quarter period had been repaid at the beginning of the four fiscal quarter period, would not exceed 6.50:1.00; provided that (i) any such Debt Incurred by Restricted Subsidiaries that are not Guarantors pursuant to this Section 4.09(a), when aggregated with Debt Incurred by Restricted Subsidiaries that are not Guarantors pursuant to clauses (1), (21)(i), (24) and (25) (but solely to the extent such Refinancing Debt is in respect of Debt Incurred pursuant to Section 4.09(a) or clause (1)(y) of the definition of “Permitted Debt”) of the definition of “Permitted Debt,” shall not exceed an aggregate principal amount outstanding equal to the greater of (x) $58.0 million and (y) 2.5% of Consolidated Total Assets (in each case, determined on the date of the Closing such Incurrence) and disclosed in Schedule 5.15 (other than ii) prior to January 1, 2019, such Debt may only be Incurred to finance Investments permitted under clause (6) of the definition of “Permitted Investments.”
(b) Notwithstanding Section 4.09(a), the Company under and its Restricted Subsidiaries may Incur Permitted Debt.
(c) For purposes of determining compliance with this Section 4.09:
(1) in the Credit Agreement or under event that an item of Debt meets the MLP Note Guaranty referred to criteria of more than one of the types of Debt described in Section 10.24.09(a) or (b), including categories of Permitted Debt, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any extensions, refundings, renewals portion of such item of Debt in any manner that complies with Section 4.09 and refinancings (collectively, a "Refinancing") thereof, shall only be required to include the amount and type of such Debt in one of such clauses under Section 4.09 or the definition of “Permitted Debt” hereunder; provided that no such reclassification or division shall be permitted with respect to any Debt Incurred pursuant to clause (1), (23) or (26) of the definition of “Permitted Debt”;
(2) Debt permitted by this Section 4.09 need not be permitted solely by reference to one provision permitting such Debt but may be permitted in part by one such provision and in part by one or more other provisions of this Section 4.09 (including categories of Permitted Debt) permitting such Debt; and
(3) Guarantees of, or obligations with respect to letters of credit supporting, Debt that is otherwise included in the determination of a particular amount of Debt shall not be included. The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt for purposes of this Section 4.09. For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt denominated in another currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term Debt, or first committed, in the case of revolving credit Debt; provided that, if such Debt is Incurred as Refinancing Debt to refinance Debt denominated in another currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Debt does not exceed (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinancedrefinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, plus (ii) the maturity date aggregate amount of fees, underwriting discounts, defeasance costs, premiums and other costs and expenses Incurred in connection with such refinancing. Notwithstanding any other provision of this covenant, the maximum amount of Debt resulting from such Refinancing that the Company may Incur pursuant to this covenant shall not be earlier than the maturity date deemed to be exceeded solely as a result of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced and (iv) no Default or Event of Default exists at the time of such Refinancing;
(c) Debt of the Company and its Restricted Subsidiaries if on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt:
(i) no Default or Event of Default exists; and
(ii) any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(iii) the ratio of Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date to Consolidated Interest Expense is not less than 2.25 to 1; and
(iv) the ratio of Consolidated Debt to Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date is not greater than 5.00 to 1;
(d) Debt of the Company and its Restricted Subsidiaries incurred under a Working Capital Facility if, on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other such Debt, the Debt outstanding thereunder will not exceed Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date, provided that there shall have been during the immediately preceding four consecutive fiscal quarters a period of at least 30 consecutive days on each of which the Company and its Restricted Subsidiaries would have been permitted to (but did not) incur on such day under Section 10.1(c) (without reference to the condition stated in clause (i) thereof) Debt fluctuations in the amount exchange rate of the average daily balance of Debt outstanding under the Working Capital Facility for such 30-day period, provided further that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3;
(e) Subordinated Debt of the Company if on the date the Company becomes liable with respect to any such Subordinated Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Subordinated Debt of the Company shall not exceed $50,000,000;
(f) Debt of the Company and its Restricted Subsidiaries to a seller of assets or shares purchased by the Company or any Restricted Subsidiary if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Debt of the Company to all such sellers of assets or shares shall not exceed $60,000,000, provided that the agreement or instrument pursuant to which such Debt is incurred (i) contains no financial covenants more restrictive on the Company or its Restricted Subsidiaries than those contained in this Agreement and (ii) contains no events of default (other than in respect of payment of principal and interest on such Debt and in respect of the accuracy of representations and warranties made by the Company or its Restricted Subsidiaries thereunder) which are capable of occurring prior to the occurrence of any Event of Default, and provided, further, that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(g) Debt of the Company under the "Facility B Commitments" or the "Facility C Commitments" pursuant to the Credit Agreement if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the incurrence of such Debt would be permitted under Section 10.1(c) and any Refinancing thereof, provided that (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, (ii) the maturity date of the Debt resulting from such Refinancing shall not be earlier than the maturity date of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced, and (iv) the other terms applicable to the Debt resulting from such Refinancing shall not be more onerous to the Company than the terms applicable to the Debt being Refinanced, provided further that the aggregate amount of all such Debt of the Company permitted by this clause (g) shall not exceed $75,000,000. For the purposes of this Section 10.1, any Person becoming a Restricted Subsidiary after the date hereof shall be deemed, at the time it becomes a Restricted Subsidiary, to have incurred all of its then outstanding Debt, and any Person Refinancing any Debt shall be deemed to have incurred such Debt at the time of such Refinancingcurrencies.
Appears in 1 contract
Incurrence of Debt. The Company will not, and will not permit To the extent the Borrower or any Restricted Subsidiary to, directly incurs Indebtedness not permitted under Section 9.02 or indirectly, create, incur, assume, guarantee, incurs debt permitted by Section 2.07 or otherwise become directly or indirectly liable with respect to, any Debt, other than:
9.02 (a) Debt evidenced by to the Notes;
(b) Debt extent incurred to Refinance all of the Company outstanding Loans), then within five Business Days of such incurrence, the Borrower shall make an offer to the Lenders to prepay the Loans in accordance with the sentence below in an amount equal to 100% of the Net Cash Proceeds from such incurrence, at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and any applicable Prepayment Premium, if any, to the date fixed for the closing of such offer. Each Lender may accept its Restricted Subsidiaries outstanding on pro rata portion of any debt prepayment offer required to be made pursuant to this clause (ii) (each such offer, an “Debt Prepayment Offer”), provided that each Lender may accept all or a portion of its Debt Prepayment Offer by providing written notice (a “Debt Prepayment Acceptance Notice”) to the Administrative Agent and the Borrower no later than 5:00 p.m. 10 Business Days after the date of the Closing and disclosed in Schedule 5.15 (other than Debt such Lender’s receipt of the Company under the Credit Agreement or under the MLP Note Guaranty referred to in Section 10.2), and any extensions, refundings, renewals and refinancings (collectively, Debt Prepayment Offer. Each Debt Prepayment Acceptance Notice from a "Refinancing") thereof, provided that (i) given Lender shall specify the principal amount of the Debt resulting from mandatory repayment of Loans to be accepted by such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, (ii) the maturity date of the Debt resulting from such Refinancing shall not be earlier than the maturity date of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced and (iv) no Default or Event of Default exists at the time of such Refinancing;
(c) Debt of the Company and its Restricted Subsidiaries if on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt:
(i) no Default or Event of Default existsLender; and
(ii) any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(iii) the ratio of Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date to Consolidated Interest Expense is not less than 2.25 to 1; and
(iv) the ratio of Consolidated Debt to Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date is not greater than 5.00 to 1;
(d) Debt of the Company and its Restricted Subsidiaries incurred under a Working Capital Facility if, on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other such Debt, the Debt outstanding thereunder will not exceed Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date, provided that there shall have been during the immediately preceding four consecutive fiscal quarters a period of at least 30 consecutive days on each of which the Company and its Restricted Subsidiaries would have been permitted if such Lender fails to (but did not) incur on such day under Section 10.1(c) (without reference to the condition stated in clause (i) thereof) Debt in the amount of the average daily balance of Debt outstanding under the Working Capital Facility for such 30-day period, provided further that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3;
(e) Subordinated Debt of the Company if on the date the Company becomes liable with respect to any such Subordinated Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Subordinated Debt of the Company shall not exceed $50,000,000;
(f) Debt of the Company and its Restricted Subsidiaries to a seller of assets or shares purchased by the Company or any Restricted Subsidiary if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Debt of the Company to all such sellers of assets or shares shall not exceed $60,000,000, provided that the agreement or instrument pursuant to which such Debt is incurred (i) contains no financial covenants more restrictive on the Company or its Restricted Subsidiaries than those contained in this Agreement and (ii) contains no events of default (other than in respect of payment of principal and interest on such Debt and in respect of the accuracy of representations and warranties made by the Company or its Restricted Subsidiaries thereunder) which are capable of occurring prior to the occurrence of any Event of Default, and provided, further, that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(g) Debt of the Company under the "Facility B Commitments" or the "Facility C Commitments" pursuant to the Credit Agreement if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the incurrence of such Debt would be permitted under Section 10.1(c) and any Refinancing thereof, provided that (i) specify the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being RefinancedLoans to be accepted, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, (ii) the maturity date of the Debt resulting from such Refinancing shall not be earlier than the maturity date of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced, and (iv) the other terms applicable to the Debt resulting from such Refinancing shall not be more onerous to the Company than the terms applicable to the Debt being Refinanced, provided further that the aggregate amount of all such Debt of the Company permitted by this clause (g) shall not exceed $75,000,000. For the purposes of this Section 10.1, any Person becoming a Restricted Subsidiary after the date hereof shall be deemed, at the time it becomes a Restricted Subsidiary, to have incurred all of its then outstanding Debt, and any Person Refinancing any Debt shall be deemed to have incurred such requested a prepayment of its Loans in amount equal to its pro rata portion of the Debt at Prepayment Offer. If a Lender fails to deliver a Debt Prepayment Acceptance Notice to the Administrative Agent within the time frame specified above, such failure will be deemed a rejection of the total amount of such Refinancingmandatory prepayment of Loans. The Borrower shall make any prepayments no later than five Business Days after expiration of the time period for acceptance by Lenders of Debt Prepayment Offers. Any Declined Amounts remaining shall be retained by the Borrower. Notwithstanding the foregoing, if the Borrower seeks to refinance the Loans in full with Senior Notes (as defined in the First Lien Credit Agreement on the date hereof) in accordance with Section 9.02(i) of the First Lien Credit Agreement (as in effect on the date hereof) and the Required Lenders deliver Debt Prepayment Acceptance Notices to the Administrative Agent and the Borrower within the time period specified above in this clause 3.04(c)(ii), then all of the Lenders shall be deemed to have accepted the Debt Prepayment Offer.
Appears in 1 contract
Incurrence of Debt. The Company Borrower will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, create, incurissue, assume, guarantee, incur or otherwise be or become directly liable in respect of Debt, if, after the incurrence of such Debt, there would exist the reasonable possibility of a material adverse effect on the business financial position or indirectly liable with respect toresults of operations of the Borrower and its Subsidiaries, any Debtconsidered as a whole, or on the ability of the Borrower to perform its obligations under the Loan Documents, other than:
(a) Debt evidenced by of the NotesBorrower to the Bank under the Loan Documents;
(bi) Debt of the Company and its Restricted Subsidiaries outstanding on the date of the Closing and disclosed in Schedule 5.15 (other than Debt of the Company Borrower under the Nomura Credit Agreement or under the MLP Note Guaranty referred to in Section 10.2), and any extensions, refundings, renewals and refinancings (collectively, a "Refinancing") thereof, provided that (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such RefinancingFacility, (ii) the maturity date Debt of the Debt resulting from such Refinancing shall not be earlier than Borrower under the maturity date of the Debt being RefinancedGACC Credit Facility, (iii) the average life up to maturity $300,000,000 of Debt to finance investments in subordinated debt securities, (iv) Debt of the Borrower or its Subsidiaries under collateralized mortgage obligations and under funding notes issued to Federal Home Loan Mortgage Corporation or to Federal National Mortgage Association to secure its structured pass-through securities, and (v) other Debt resulting from such Refinancing shall not be less than the average life to maturity of the Borrower on terms and conditions similar to those applicable to the Debt being Refinanced described in clauses (i), (ii), (iii) and (iv) of this Subsection; provided that the aggregate amount of all such Debt permitted under this subsection (b) shall at no Default or Event of Default exists at the time of such Refinancingexceed $1,000,000,000;
(c) Debt of the Company and its Restricted Subsidiaries if on Borrower in an amount which does not exceed the date Consolidated Tangible Net Worth of the Company or such Restricted Subsidiary becomes liable with respect Borrower, subject to restrictions reasonably satisfactory to the Bank that the holders of any such Debt and immediately shall not exercise any right or remedy in connection therewith before the date that is one year after giving effect thereto and the concurrent retirement of any other Debt:
(i) no Default or Event of Default exists; and
(ii) any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(iii) the ratio of Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date to Consolidated Interest Expense is not less than 2.25 to 1; and
(iv) the ratio of Consolidated Debt to Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date is not greater than 5.00 to 1Termination Date;
(d) Debt of the Company and its Restricted Subsidiaries incurred under a Working Capital Facility if, on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto Signet Bank/Virginia and the concurrent retirement of any other such Debt, the Debt outstanding thereunder will not exceed Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date, provided banks that there shall have been during the immediately preceding four consecutive fiscal quarters a period of at least 30 consecutive days on each of which the Company and its Restricted Subsidiaries would have been permitted to (but did not) incur on such day under Section 10.1(c) (without reference are parties to the condition stated in clause (i) thereof) Debt in Amended and Restated Credit Agreement, dated as of December 22, 1992, as amended, between the amount of the average daily balance of Debt outstanding under the Working Capital Facility for Borrower, Signet Bank/Virginia, as agent, and such 30-day period, provided further that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3banks;
(e) Subordinated Debt of accrued dividends not otherwise prohibited under the Company if on the date the Company becomes liable with respect to any such Subordinated Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Subordinated Debt of the Company shall not exceed $50,000,000Loan Documents;
(f) Debt accounts payable and accrued expenses incurred in the ordinary course of the Company and its Restricted Subsidiaries to a seller of assets or shares purchased by the Company or any Restricted Subsidiary if on the date the Company becomes liable business with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Debt of the Company to all such sellers of assets or shares shall maturities not exceed $60,000,000, provided that the agreement or instrument pursuant to which such Debt is incurred (i) contains no financial covenants more restrictive on the Company or its Restricted Subsidiaries than those contained in this Agreement and (ii) contains no events of default (other than in respect of payment of principal and interest on such Debt and in respect of the accuracy of representations and warranties made by the Company or its Restricted Subsidiaries thereunder) which are capable of occurring prior to the occurrence of any Event of Default, and provided, further, that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; andexceeding one year;
(g) Debt arising out of any guarantee of the Company obligations CRIIMI MAE Services Limited Partnership under servicing agreements entered into in the ordinary course of business; and
(i) other Debt expressly approved by the Bank, which approval shall not be unreasonably withheld."Facility B Commitments" or
2. Except as amended hereby, the "Facility C Commitments" pursuant to remaining terms of the Credit Agreement if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the incurrence of such Debt would be permitted under Section 10.1(c) Loan Documents shall continue in full force and any Refinancing thereof, provided that (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinanced, together with any accrued interest effect and premium with respect thereto satisfied and any and affirmed in all costs and expenses related to such Refinancing, (ii) the maturity date of the Debt resulting from such Refinancing shall not be earlier than the maturity date of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced, and (iv) the other terms applicable to the Debt resulting from such Refinancing shall not be more onerous to the Company than the terms applicable to the Debt being Refinanced, provided further that the aggregate amount of all such Debt of the Company permitted by this clause (g) shall not exceed $75,000,000. For the purposes of this Section 10.1, any Person becoming a Restricted Subsidiary after the date hereof shall be deemed, at the time it becomes a Restricted Subsidiary, to have incurred all of its then outstanding Debt, and any Person Refinancing any Debt shall be deemed to have incurred such Debt at the time of such Refinancingrespects.
Appears in 1 contract
Sources: Credit Agreement (Criimi Mae Inc)
Incurrence of Debt. The Company Borrower will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, create, incurissue, assume, guarantee, incur or otherwise be or become directly liable in respect of Debt, if, after the incurrence of such Debt, there would exist the reasonable possibility of a material adverse effect on the business financial position or indirectly liable with respect toresults of operations of the Borrower and its Subsidiaries, any Debtconsidered as a whole, or on the ability of the Borrower to perform its obligations under the Loan Documents, other than:
(a) Debt evidenced by of the NotesBorrower to the Bank under the Loan Documents;
(bi) Debt of the Company and its Restricted Subsidiaries outstanding on the date of the Closing and disclosed in Schedule 5.15 (other than Debt of the Company Borrower under the CIBC Credit Agreement or under the MLP Note Guaranty referred to in Section 10.2), and any extensions, refundings, renewals and refinancings (collectively, a "Refinancing") thereof, provided that (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such RefinancingAgreement, (ii) the maturity date Debt of the Debt resulting from such Refinancing shall not be earlier than Borrower under the maturity date of the Debt being RefinancedNomura Credit Facility, (iii) the average life to maturity Debt of the Debt resulting from such Refinancing shall not be less than Borrower under the average life to maturity of the Debt being Refinanced and GACC Credit Facility, (iv) up to $200,000,000 of Debt to finance investments in subordinated debt securities, (v) Debt of the Borrower or its Subsidiaries under collaterialized mortgage obligations and under funding notes issued to Federal Home Loan Mortgage Corporation to secure its structural pass-through securities, and (vi) other Debt of the Borrower on terms and conditions similar to those applicable to the Debt described in clauses (i), (ii), (iii), (iv) and (v) of this Subsection; provided that the aggregate amount of all such Debt permitted under this subsection (b) shall at no Default or Event of Default exists at the time of such Refinancingexceed $800,000,000;
(c) Debt of the Company and its Restricted Subsidiaries if on Borrower in an amount which does not exceed the date Consolidated Tangible Net Worth of the Company or such Restricted Subsidiary becomes liable with respect Borrower, subject to restrictions reasonably satisfactory to the Bank that the holders of any such Debt and immediately shall not exercise any right or remedy in connection therewith before the date that is one year after giving effect thereto and the concurrent retirement of any other Debt:
(i) no Default or Event of Default exists; and
(ii) any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(iii) the ratio of Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date to Consolidated Interest Expense is not less than 2.25 to 1; and
(iv) the ratio of Consolidated Debt to Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date is not greater than 5.00 to 1Termination Date;
(d) Debt of the Company and its Restricted Subsidiaries incurred under a Working Capital Facility if, on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto Signet Bank/Virginia and the concurrent retirement of any other such Debt, the Debt outstanding thereunder will not exceed Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date, provided banks that there shall have been during the immediately preceding four consecutive fiscal quarters a period of at least 30 consecutive days on each of which the Company and its Restricted Subsidiaries would have been permitted to (but did not) incur on such day under Section 10.1(c) (without reference are parties to the condition stated in clause (i) thereof) Debt in Amended and Restated Credit Agreement, dated as of December 22, 1992, as amended, between the amount of the average daily balance of Debt outstanding under the Working Capital Facility for Borrower, Signet Bank/Virginia, as agent, and such 30-day period, provided further that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3banks;
(e) Subordinated Debt of accrued dividends not otherwise prohibited under the Company if on the date the Company becomes liable with respect to any such Subordinated Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Subordinated Debt of the Company shall not exceed $50,000,000Loan Documents;
(f) Debt accounts payable and accrued expenses incurred in the ordinary course of the Company and its Restricted Subsidiaries to a seller of assets or shares purchased by the Company or any Restricted Subsidiary if on the date the Company becomes liable business with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Debt of the Company to all such sellers of assets or shares shall maturities not exceed $60,000,000, provided that the agreement or instrument pursuant to which such Debt is incurred (i) contains no financial covenants more restrictive on the Company or its Restricted Subsidiaries than those contained in this Agreement and (ii) contains no events of default (other than in respect of payment of principal and interest on such Debt and in respect of the accuracy of representations and warranties made by the Company or its Restricted Subsidiaries thereunder) which are capable of occurring prior to the occurrence of any Event of Default, and provided, further, that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; andexceeding one year;
(g) Debt arising out of any guarantee of the Company obligations CRIIMI MAE Services Limited Partnership under servicing agreements entered into in the ordinary course of business; and
(i) other Debt expressly approved by the Bank, which approval shall not be unreasonably withheld."Facility B Commitments" or
2. Except as amended hereby, the "Facility C Commitments" pursuant to remaining terms of the Credit Agreement if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the incurrence of such Debt would be permitted under Section 10.1(c) Loan Documents shall continue in full force and any Refinancing thereof, provided that (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinanced, together with any accrued interest effect and premium with respect thereto satisfied and any and affirmed in all costs and expenses related to such Refinancing, (ii) the maturity date of the Debt resulting from such Refinancing shall not be earlier than the maturity date of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced, and (iv) the other terms applicable to the Debt resulting from such Refinancing shall not be more onerous to the Company than the terms applicable to the Debt being Refinanced, provided further that the aggregate amount of all such Debt of the Company permitted by this clause (g) shall not exceed $75,000,000. For the purposes of this Section 10.1, any Person becoming a Restricted Subsidiary after the date hereof shall be deemed, at the time it becomes a Restricted Subsidiary, to have incurred all of its then outstanding Debt, and any Person Refinancing any Debt shall be deemed to have incurred such Debt at the time of such Refinancingrespects.
Appears in 1 contract
Sources: Credit Agreement (Criimi Mae Inc)
Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiary toSubsidiaries to Incur any Debt (including Acquired Debt); provided that the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, directly or indirectlyimmediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, create, incur, assume, guarantee, or otherwise become directly or indirectly liable with respect to, any Debt, other than:
(a) Debt evidenced by the Notes;
(b) Debt Total Net Leverage Ratio of the Company and its Restricted Subsidiaries, determined on a Pro Forma Basis, including as if any such Debt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the four fiscal quarter period had been Incurred and the proceeds thereof had been applied at the beginning of the four fiscal quarter period, and any other Debt repaid since the beginning of the four fiscal quarter period had been repaid at the beginning of the four fiscal quarter period, would not exceed 6.50:1.00; provided that (i) any such Debt Incurred by Restricted Subsidiaries that are not Guarantors pursuant to this Section 4.09(a), when aggregated with Debt Incurred by Restricted Subsidiaries that are not Guarantors pursuant to clauses (1), (21)(i), (24) and (25) (but solely to the extent such Refinancing Debt is in respect of Debt Incurred pursuant to Section 4.09(a) or clause (1)(y) of the definition of “Permitted Debt”) of the definition of “Permitted Debt,” shall not exceed an aggregate principal amount outstanding equal to the greater of (x) $58.0 million and (y) 2.5% of Consolidated Total Assets (in each case, determined on the date of the Closing such Incurrence) and disclosed in Schedule 5.15 (other than ii) prior to January 1, 2019, such Debt may only be Incurred to finance Investments permitted under clause (6) of the definition of “Permitted Investments.”
(b) Notwithstanding Section 4.09(a), the Company under and its Restricted Subsidiaries may Incur Permitted Debt.
(c) For purposes of determining compliance with this Section 4.09:
(1) in the Credit Agreement or under event that an item of Debt meets the MLP Note Guaranty referred to criteria of more than one of the types of Debt described in Section 10.24.09(a) or (b), including categories of Permitted Debt, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any extensions, refundings, renewals portion of such item of Debt in any manner that complies with Section 4.09 and refinancings (collectively, a "Refinancing") thereof, shall only be required to include the amount and type of such Debt in one of such clauses under Section 4.09 or the definition of “Permitted Debt” hereunder; provided that no such reclassification or division shall be permitted with respect to any Debt Incurred pursuant to clause (1), (23) or (26) of the definition of “Permitted Debt”;
(2) Debt permitted by this Section 4.09 need not be permitted solely by reference to one provision permitting such Debt but may be permitted in part by one such provision and in part by one or more other provisions of this Section 4.09 (including categories of Permitted Debt) permitting such Debt; and
(3) Guarantees of, or obligations with respect to letters of credit supporting, Debt that is otherwise included in the determination of a particular amount of Debt shall not be included. The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt for purposes of this Section 4.09. For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt denominated in another currency shall be calculated based on (i) in the case of any Debt incurred on the Issue Date pursuant to clause (1) of the definition “Permitted Debt,” the FX Date, and (ii) in the case of any other Debt, the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term Debt, or first committed, in the case of revolving credit Debt; provided that, if such Debt is Incurred as Refinancing Debt to refinance Debt denominated in another currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Debt does not exceed (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinancedrefinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, plus (ii) the maturity date aggregate amount of fees, underwriting discounts, defeasance costs, premiums and other costs and expenses Incurred in connection with such refinancing. Notwithstanding any other provision of this covenant, the maximum amount of Debt resulting from such Refinancing that the Company may Incur pursuant to this covenant shall not be earlier than the maturity date deemed to be exceeded solely as a result of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced and (iv) no Default or Event of Default exists at the time of such Refinancing;
(c) Debt of the Company and its Restricted Subsidiaries if on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt:
(i) no Default or Event of Default exists; and
(ii) any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(iii) the ratio of Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date to Consolidated Interest Expense is not less than 2.25 to 1; and
(iv) the ratio of Consolidated Debt to Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date is not greater than 5.00 to 1;
(d) Debt of the Company and its Restricted Subsidiaries incurred under a Working Capital Facility if, on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other such Debt, the Debt outstanding thereunder will not exceed Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date, provided that there shall have been during the immediately preceding four consecutive fiscal quarters a period of at least 30 consecutive days on each of which the Company and its Restricted Subsidiaries would have been permitted to (but did not) incur on such day under Section 10.1(c) (without reference to the condition stated in clause (i) thereof) Debt fluctuations in the amount exchange rate of the average daily balance of Debt outstanding under the Working Capital Facility for such 30-day period, provided further that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3;
(e) Subordinated Debt of the Company if on the date the Company becomes liable with respect to any such Subordinated Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Subordinated Debt of the Company shall not exceed $50,000,000;
(f) Debt of the Company and its Restricted Subsidiaries to a seller of assets or shares purchased by the Company or any Restricted Subsidiary if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Debt of the Company to all such sellers of assets or shares shall not exceed $60,000,000, provided that the agreement or instrument pursuant to which such Debt is incurred (i) contains no financial covenants more restrictive on the Company or its Restricted Subsidiaries than those contained in this Agreement and (ii) contains no events of default (other than in respect of payment of principal and interest on such Debt and in respect of the accuracy of representations and warranties made by the Company or its Restricted Subsidiaries thereunder) which are capable of occurring prior to the occurrence of any Event of Default, and provided, further, that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(g) Debt of the Company under the "Facility B Commitments" or the "Facility C Commitments" pursuant to the Credit Agreement if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the incurrence of such Debt would be permitted under Section 10.1(c) and any Refinancing thereof, provided that (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, (ii) the maturity date of the Debt resulting from such Refinancing shall not be earlier than the maturity date of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced, and (iv) the other terms applicable to the Debt resulting from such Refinancing shall not be more onerous to the Company than the terms applicable to the Debt being Refinanced, provided further that the aggregate amount of all such Debt of the Company permitted by this clause (g) shall not exceed $75,000,000. For the purposes of this Section 10.1, any Person becoming a Restricted Subsidiary after the date hereof shall be deemed, at the time it becomes a Restricted Subsidiary, to have incurred all of its then outstanding Debt, and any Person Refinancing any Debt shall be deemed to have incurred such Debt at the time of such Refinancingcurrencies.
Appears in 1 contract
Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiary toSubsidiaries to Incur any Debt (including Acquired Debt); provided, directly or indirectlythat the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, create, incur, assume, guarantee, or otherwise become directly or indirectly liable with respect to, any Debt, other thanimmediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom:
(a1) Debt evidenced by the Notes;
(b) Debt Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries, determined on a Pro Forma Basis, including as if any such Debt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Four Quarter Period had been Incurred and the proceeds thereof had been applied at the beginning of the Four Quarter Period, and any other Debt repaid since the beginning of the Four Quarter Period had been repaid at the beginning of the Four Quarter Period, would be greater than [REDACTED - commercially sensitive information]; and
(2) no Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt, provided that, the then outstanding aggregate principal amount of Debt that may be Incurred pursuant to this Section 4.09(a) by Restricted Subsidiaries outstanding that are not Guarantors shall not exceed the greater of (x) [REDACTED - commercially sensitive information]and (y) [REDACTED - commercially sensitive information] of Consolidated Total Assets (in each case, determined on the date of such Incurrence).
(b) Notwithstanding Section 4.09(a), the Closing Company and disclosed its Restricted Subsidiaries may Incur Permitted Debt.
(c) For purposes of determining compliance with this Section 4.09:
(1) in Schedule 5.15 (other the event that an item of Debt meets the criteria of more than Debt one of the Company types of Debt described in Section 4.09(a) or (b), including categories of Permitted Debt, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt in any manner that complies with Section 4.09 and shall only be required to include the amount and type of such Debt in one of such clauses under Section 4.09 or the definition of “Permitted Debt” hereunder; provided that Debt Incurred under (i) the Credit Agreement or under Facilities, (ii) the MLP Note Guaranty referred Extended Bridge Facility and (iii) the Equity Bridge Facility, in each case, on the Issue Date shall at all times be treated as Incurred pursuant to in Section 10.2clauses (1)(x), (1)(y) and (1)(z), respectively, of the definition of “Permitted Debt” hereunder;
(2) Debt permitted by this Section 4.09 need not be permitted solely by reference to one provision permitting such Debt but may be permitted in part by one such provision and in part by one or more other provisions of this Section 4.09 (including categories of Permitted Debt) permitting such Debt; and
(3) Guarantees of, or obligations with respect to letters of credit supporting, Debt that is otherwise included in the determination of a particular amount of Debt shall not be included. The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt for purposes of this Section 4.09. For purposes of determining compliance with any extensionsU.S. dollar-denominated restriction on the Incurrence of Debt, refundingsthe U.S. dollar-equivalent principal amount of Debt denominated in another currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, renewals and refinancings (collectivelyin the case of term Debt, a "Refinancing") thereofor first committed, in the case of revolving credit Debt; provided that if such Debt is Incurred as Refinancing Debt to refinance Debt denominated in another currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Debt does not exceed (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinancedrefinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, plus (ii) the maturity date aggregate amount of fees, underwriting discounts, defeasance costs, premiums and other costs and expenses Incurred in connection with such refinancing. Notwithstanding any other provision of this covenant, the maximum amount of Debt resulting from such Refinancing that the Company may Incur pursuant to this covenant shall not be earlier than the maturity date deemed to be exceeded solely as a result of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced and (iv) no Default or Event of Default exists at the time of such Refinancing;
(c) Debt of the Company and its Restricted Subsidiaries if on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt:
(i) no Default or Event of Default exists; and
(ii) any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(iii) the ratio of Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date to Consolidated Interest Expense is not less than 2.25 to 1; and
(iv) the ratio of Consolidated Debt to Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date is not greater than 5.00 to 1;
(d) Debt of the Company and its Restricted Subsidiaries incurred under a Working Capital Facility if, on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other such Debt, the Debt outstanding thereunder will not exceed Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date, provided that there shall have been during the immediately preceding four consecutive fiscal quarters a period of at least 30 consecutive days on each of which the Company and its Restricted Subsidiaries would have been permitted to (but did not) incur on such day under Section 10.1(c) (without reference to the condition stated in clause (i) thereof) Debt fluctuations in the amount exchange rate of the average daily balance of Debt outstanding under the Working Capital Facility for such 30-day period, provided further that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3;
(e) Subordinated Debt of the Company if on the date the Company becomes liable with respect to any such Subordinated Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Subordinated Debt of the Company shall not exceed $50,000,000;
(f) Debt of the Company and its Restricted Subsidiaries to a seller of assets or shares purchased by the Company or any Restricted Subsidiary if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Debt of the Company to all such sellers of assets or shares shall not exceed $60,000,000, provided that the agreement or instrument pursuant to which such Debt is incurred (i) contains no financial covenants more restrictive on the Company or its Restricted Subsidiaries than those contained in this Agreement and (ii) contains no events of default (other than in respect of payment of principal and interest on such Debt and in respect of the accuracy of representations and warranties made by the Company or its Restricted Subsidiaries thereunder) which are capable of occurring prior to the occurrence of any Event of Default, and provided, further, that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(g) Debt of the Company under the "Facility B Commitments" or the "Facility C Commitments" pursuant to the Credit Agreement if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the incurrence of such Debt would be permitted under Section 10.1(c) and any Refinancing thereof, provided that (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, (ii) the maturity date of the Debt resulting from such Refinancing shall not be earlier than the maturity date of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced, and (iv) the other terms applicable to the Debt resulting from such Refinancing shall not be more onerous to the Company than the terms applicable to the Debt being Refinanced, provided further that the aggregate amount of all such Debt of the Company permitted by this clause (g) shall not exceed $75,000,000. For the purposes of this Section 10.1, any Person becoming a Restricted Subsidiary after the date hereof shall be deemed, at the time it becomes a Restricted Subsidiary, to have incurred all of its then outstanding Debt, and any Person Refinancing any Debt shall be deemed to have incurred such Debt at the time of such Refinancingcurrencies.
Appears in 1 contract
Incurrence of Debt. The Company Borrower will not, and nor will not Borrower permit any Restricted Subsidiary other Credit Party to, directly or indirectly, create, incur, assume, guarantee, become or otherwise become directly or indirectly remain liable with respect to, for any Debt, other thanexcept that:
(a) Borrower may incur, become or remain liable for:
(i) the Obligations;
(ii) Permitted Subordinate Debt; provided, that:
(A) Additional Permitted Subordinate Debt evidenced may not exceed an aggregate principal amount outstanding at any one time of $300,000,000, and contemporaneously with any issuance or incurrence thereof (1) the Borrowing Base shall be automatically reduced pursuant to and in accordance with Section 2.13 and (2) Borrower shall make any mandatory prepayment required by with Section 2.6(b), if applicable; and
(B) the Notessum of the 2010 Senior Subordinated Notes Debt and the Encore Permitted Subordinate Debt at any time after the Encore Notes Outside Redemption Date may not exceed an aggregate principal amount of $1,250,000,000;
(iii) other unsecured Debt in an aggregate amount outstanding at any time not to exceed $40,000,000;
(b) any other Credit Party may incur, become or remain liable for (i) the Obligations, (ii) without duplication, Permitted Revenue Bond Debt, and (iii) without duplication, Permitted Subordinate Debt, subject to the limitations set forth in Section 9.1(a)(ii);
(c) Onshore may incur Debt described in clause (g) of the Company and its Restricted Subsidiaries outstanding on definition thereof in connection with any Prior Genesis VPP Transaction;
(d) Borrower or Onshore, as the date case may be without duplication, may incur Debt which represents a refinancing of the Onshore Senior Subordinated Notes existing as of the Closing and disclosed in Schedule 5.15 (other than Debt of the Company under the Credit Agreement or under the MLP Note Guaranty referred to in Section 10.2)Date; provided, and any extensions, refundings, renewals and refinancings (collectively, a "Refinancing") thereof, provided that (i) the principal amount of the such Debt resulting from such Refinancing shall not exceed an aggregate amount equal to the outstanding principal amount sum of such Debt being Refinanced, together with $225,000,000 plus any accrued interest and premium with respect thereto and any and all costs customary out-of-pocket fees and expenses related to reasonably incurred by Borrower or Onshore, as applicable, in connection with such Refinancingrefinancing, (ii) the maturity date such Debt bears no greater than a market interest rate as of the Debt resulting from such Refinancing shall not be earlier than the maturity date time of the Debt being Refinancedits issuance (as determined in good faith by Borrower), (iii) the average life any Liens securing such Debt are not extended to maturity any additional property of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced and any Credit Party, (iv) no Default or Event Credit Party that is not originally obligated with respect to repayment of Default exists such Debt is required to be come obligated with respect thereto, (v) such refinancing does not result in a shortening of the average weighted maturity of such Debt so refinanced, (vi) the terms of any such refinancing are not less favorable to the obligor thereunder than the original terms of such Debt, (vii) the terms and conditions of the refinancing Debt must include subordination terms and conditions that are at least as favorable to Administrative Agent and Banks as those that were applicable to the refinanced Indebtedness, and (viii) at the time of such Refinancing;
refinancing (c) Debt of the Company and its Restricted Subsidiaries if on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt:
(iA) no Default or Event Borrowing Base Deficiency exists on the date of any such refinancing (both prior to and after giving effect to such Restricted Payments), and (B) no Default existsor Borrowing Base Deficiency would result therefrom; and
(iie) Borrower or any such Debt of a Restricted Subsidiary is permitted may incur, become and remain liable for Permitted Subordinate Debt as a guarantor; provided, that (1) such Guarantees of Permitted Subordinate Debt shall be subordinated to the Obligations pursuant to Section 10.3subordination provisions approved by Majority Banks, such approval to not be unreasonably withheld, and (2) prior to the execution and delivery by any Restricted Subsidiary of any Guarantee of Permitted Subordinate Debt, such Restricted Subsidiary shall have executed and delivered to Administrative Agent for the ratable benefit of Banks a Facility Guarantee, and all the Equity of such Restricted Subsidiary owned by any Credit Party shall have been pledged to Administrative Agent pursuant to the Borrower Pledge Agreement or a Subsidiary Pledge Agreement; and
(iiif) the ratio of Consolidated Cash Flow for the period of four consecutive fiscal quarters ending onBorrower or any other Credit Party may incur, or most recently ended prior to, such date to Consolidated Interest Expense is not less than 2.25 to 1; and
(iv) the ratio of Consolidated Debt to Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date is not greater than 5.00 to 1;
(d) Debt of the Company become and its Restricted Subsidiaries incurred under a Working Capital Facility if, on the date the Company or such Restricted Subsidiary becomes remain liable with respect as to any Guarantee by such Person of Debt and immediately after giving effect thereto and the concurrent retirement of any other such DebtCredit Party, provided, that the Debt outstanding thereunder will not exceed Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date, provided that there shall have been during the immediately preceding four consecutive fiscal quarters a period of at least 30 consecutive days on each of which the Company and its Restricted Subsidiaries would have been so guaranteed is expressly permitted to (but did not) incur on such day under Section 10.1(c) (without reference to the condition stated in clause (i) thereof) Debt in the amount of the average daily balance of Debt outstanding under the Working Capital Facility for such 30-day period, provided further that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3;
(e) Subordinated Debt of the Company if on the date the Company becomes liable with respect to any such Subordinated Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Subordinated Debt of the Company shall not exceed $50,000,000;
(f) Debt of the Company and its Restricted Subsidiaries to a seller of assets or shares purchased by the Company or any Restricted Subsidiary if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Debt of the Company to all such sellers of assets or shares shall not exceed $60,000,000, provided that the agreement or instrument pursuant to which such Debt is incurred (i) contains no financial covenants more restrictive on the Company or its Restricted Subsidiaries than those contained in this Agreement and (ii) contains no events of default (other than in respect of payment of principal and interest on such Debt and in respect of the accuracy of representations and warranties made by the Company or its Restricted Subsidiaries thereunder) which are capable of occurring prior to the occurrence of any Event of Default, and provided, further, that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(g) Debt of the Company under the "Facility B Commitments" or the "Facility C Commitments" pursuant to the Credit Agreement if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the incurrence of such Debt would be permitted under Section 10.1(c) and any Refinancing thereof, provided that (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, (ii) the maturity date of the Debt resulting from such Refinancing shall not be earlier than the maturity date of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced, and (iv) the other terms applicable to the Debt resulting from such Refinancing shall not be more onerous to the Company than the terms applicable to the Debt being Refinanced, provided further that the aggregate amount of all such Debt of the Company permitted by this clause (g) shall not exceed $75,000,000. For the purposes provisions of this Section 10.1, any Person becoming a Restricted Subsidiary after the date hereof shall be deemed, at the time it becomes a Restricted Subsidiary, to have incurred all of its then outstanding Debt, and any Person Refinancing any Debt shall be deemed to have incurred such Debt at the time of such Refinancing9.1.
Appears in 1 contract
Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiary toSubsidiaries to Incur any Debt (including Acquired Debt); provided that the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, directly or indirectlyimmediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, create, incur, assume, guarantee, or otherwise become directly or indirectly liable with respect to, any Debt, other than:
(a) Debt evidenced by the Notes;
(b) Debt Total Net Leverage Ratio of the Company and its Restricted Subsidiaries, determined on a Pro Forma Basis, including as if any such Debt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the four fiscal quarter period had been Incurred and the proceeds thereof had been applied at the beginning of the four fiscal quarter period, and any other Debt repaid since the beginning of the four fiscal quarter period had been repaid at the beginning of the four fiscal quarter period, would not exceed 6.50:1.00; provided that (i) any such Debt Incurred by Restricted Subsidiaries that are not Guarantors pursuant to this Section 4.09(a), when aggregated with Debt Incurred by Restricted Subsidiaries that are not Guarantors pursuant to clauses (1), (21)(i), (24) and (25) (but solely to the extent such Refinancing Debt is in respect of Debt Incurred pursuant to Section 4.09(a) or clause (1)(y) of the definition of “Permitted Debt”) of the definition of “Permitted Debt,” shall not exceed an aggregate principal amount outstanding equal to the greater of (x) $58.0 million and (y) 2.5% of Consolidated Total Assets (in each case, determined on the date of the Closing such Incurrence) and disclosed in Schedule 5.15 (other than ii) prior to January 1, 2019, such Debt may only be Incurred to finance Investments permitted under clause (6) of the definition of “Permitted Investments.”
(b) Notwithstanding Section 4.09(a), the Company under and its Restricted Subsidiaries may Incur Permitted Debt.
(c) For purposes of determining compliance with this Section 4.09:
(1) in the Credit Agreement or under event that an item of Debt meets the MLP Note Guaranty referred to criteria of more than one of the types of Debt described in Section 10.24.09(a) or (b), including categories of Permitted Debt, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any extensions, refundings, renewals portion of such item of Debt in any manner that complies with Section 4.09 and refinancings (collectively, a "Refinancing") thereof, shall only be required to include the amount and type of such Debt in one of such clauses under Section 4.09 or the definition of “Permitted Debt” hereunder; provided that no such reclassification or division shall be permitted with respect to any Debt Incurred pursuant to clause (1), (23) or (26) of the definition of “Permitted Debt”;
(2) Debt permitted by this Section 4.09 need not be permitted solely by reference to one provision permitting such Debt but may be permitted in part by one such provision and in part by one or more other provisions of this Section 4.09 (including categories of Permitted Debt) permitting such Debt; and
(3) Guarantees of, or obligations with respect to letters of credit supporting, Debt that is otherwise included in the determination of a particular amount of Debt shall not be included. The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt for purposes of this Section 4.09. For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt denominated in another currency shall be calculated based on (i) in the case of any Debt incurred on the Issuance Date pursuant to clause (1) of the definition “Permitted Debt,” the FX Date, and (ii) in the case of any other Debt, the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term Debt, or first committed, in the case of revolving credit Debt; provided that, if such Debt is Incurred as Refinancing Debt to refinance Debt denominated in another currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Debt does not exceed (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinancedrefinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, plus (ii) the maturity date aggregate amount of fees, underwriting discounts, defeasance costs, premiums and other costs and expenses Incurred in connection with such refinancing. Notwithstanding any other provision of this covenant, the maximum amount of Debt resulting from such Refinancing that the Company may Incur pursuant to this covenant shall not be earlier than the maturity date deemed to be exceeded solely as a result of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced and (iv) no Default or Event of Default exists at the time of such Refinancing;
(c) Debt of the Company and its Restricted Subsidiaries if on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt:
(i) no Default or Event of Default exists; and
(ii) any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(iii) the ratio of Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date to Consolidated Interest Expense is not less than 2.25 to 1; and
(iv) the ratio of Consolidated Debt to Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date is not greater than 5.00 to 1;
(d) Debt of the Company and its Restricted Subsidiaries incurred under a Working Capital Facility if, on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other such Debt, the Debt outstanding thereunder will not exceed Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date, provided that there shall have been during the immediately preceding four consecutive fiscal quarters a period of at least 30 consecutive days on each of which the Company and its Restricted Subsidiaries would have been permitted to (but did not) incur on such day under Section 10.1(c) (without reference to the condition stated in clause (i) thereof) Debt fluctuations in the amount exchange rate of the average daily balance of Debt outstanding under the Working Capital Facility for such 30-day period, provided further that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3;
(e) Subordinated Debt of the Company if on the date the Company becomes liable with respect to any such Subordinated Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Subordinated Debt of the Company shall not exceed $50,000,000;
(f) Debt of the Company and its Restricted Subsidiaries to a seller of assets or shares purchased by the Company or any Restricted Subsidiary if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Debt of the Company to all such sellers of assets or shares shall not exceed $60,000,000, provided that the agreement or instrument pursuant to which such Debt is incurred (i) contains no financial covenants more restrictive on the Company or its Restricted Subsidiaries than those contained in this Agreement and (ii) contains no events of default (other than in respect of payment of principal and interest on such Debt and in respect of the accuracy of representations and warranties made by the Company or its Restricted Subsidiaries thereunder) which are capable of occurring prior to the occurrence of any Event of Default, and provided, further, that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(g) Debt of the Company under the "Facility B Commitments" or the "Facility C Commitments" pursuant to the Credit Agreement if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the incurrence of such Debt would be permitted under Section 10.1(c) and any Refinancing thereof, provided that (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, (ii) the maturity date of the Debt resulting from such Refinancing shall not be earlier than the maturity date of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced, and (iv) the other terms applicable to the Debt resulting from such Refinancing shall not be more onerous to the Company than the terms applicable to the Debt being Refinanced, provided further that the aggregate amount of all such Debt of the Company permitted by this clause (g) shall not exceed $75,000,000. For the purposes of this Section 10.1, any Person becoming a Restricted Subsidiary after the date hereof shall be deemed, at the time it becomes a Restricted Subsidiary, to have incurred all of its then outstanding Debt, and any Person Refinancing any Debt shall be deemed to have incurred such Debt at the time of such Refinancingcurrencies.
Appears in 1 contract
Sources: Indenture (Concordia Investment Holdings (Jersey) LTD)
Incurrence of Debt. The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create, incur, assume, guarantee, or otherwise become directly or indirectly liable with respect to, any Debt, other than:
(a) Debt evidenced by the Notes;
(b) Debt of the Company and its Restricted Subsidiaries outstanding on the date of the Closing and disclosed in Schedule 5.15 (other than Debt of the Company under the Credit Agreement or under the MLP Note Guaranty referred to in Section 10.2), and any extensions, refundings, renewals and refinancings (collectively, a "Refinancing") thereof, provided that (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, (ii) the maturity date of the Debt resulting from such Refinancing shall not be earlier than the maturity date of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced and (iv) no Default or Event of Default exists at the time of such Refinancing;
(c) Debt of the Company and its Restricted Subsidiaries if on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt:
(i) no Default or Event of Default exists; and
(ii) any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(iii) the ratio of Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date to Consolidated Interest Expense is not less than 2.25 to 1; and;
(iv) the ratio of Consolidated Debt to Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date is not greater than 5.00 to 1;
(v) the ratio of Adjusted Consolidated Cash Flow to Adjusted Consolidated Interest Expense for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date is not less than 2.15 to 1; and
(vi) the ratio of Adjusted Consolidated Debt to Adjusted Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date is not greater than (a) 5.40 to 1 if such date is on or prior to April 30, 2001, or (b) 5.25 to 1 if such date is after April 30, 2001;
(d) Debt of the Company and its Restricted Subsidiaries incurred under a Working Capital Facility if, on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other such Debt, the Debt outstanding thereunder will not exceed Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date, provided that there shall have been during the immediately preceding four consecutive fiscal quarters a period of at least 30 consecutive days on each of which the Company and its Restricted Subsidiaries would have been permitted to (but did not) incur on such day under Section 10.1(c) (without reference to the condition stated in clause (i) thereof) Debt in the amount of the average daily balance of Debt outstanding under the Working Capital Facility for such 30-day period, provided further that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3;
(e) Subordinated Debt of the Company if on the date the Company becomes liable with respect to any such Subordinated Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Subordinated Debt of the Company shall not exceed $50,000,000;
(f) Debt of the Company and its Restricted Subsidiaries to a seller of assets or shares purchased by the Company or any Restricted Subsidiary if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Debt of the Company to all such sellers of assets or shares shall not exceed $60,000,000, provided that the agreement or instrument pursuant to which such Debt is incurred (i) contains no financial covenants more restrictive on the Company or its Restricted Subsidiaries than those contained in this Agreement and (ii) contains no events of default (other than in respect of payment of principal and interest on such Debt and in respect of the accuracy of representations and warranties made by the Company or its Restricted Subsidiaries thereunder) which are capable of occurring prior to the occurrence of any Event of Default, and provided, further, that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(g) Debt of the Company under the "Facility B Commitments" or the "Facility C Commitments" pursuant to the Credit Agreement if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the incurrence of such Debt would be permitted under Section 10.1(c) and any Refinancing thereof, provided that (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, (ii) the maturity date of the Debt resulting from such Refinancing shall not be earlier than the maturity date of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced, and (iv) the other terms applicable to the Debt resulting from such Refinancing shall not be more onerous to the Company than the terms applicable to the Debt being Refinanced, provided further that the aggregate amount of all such Debt of the Company permitted by this clause (g) shall not exceed $75,000,000. For the purposes of this Section 10.1, any Person becoming a Restricted Subsidiary after the date hereof shall be deemed, at the time it becomes a Restricted Subsidiary, to have incurred all of its then outstanding Debt, and any Person Refinancing any Debt shall be deemed to have incurred such Debt at the time of such Refinancing.
Appears in 1 contract
Sources: Note Purchase Agreement (Ferrellgas Partners Finance Corp)
Incurrence of Debt. The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create, incur, assume, guarantee, or otherwise become directly or indirectly liable with respect to, any Debt, other than:
(a) Debt evidenced by the Notes;
(b) Debt of the Company and its Restricted Subsidiaries outstanding on the date of the Closing and disclosed in Schedule 5.15 (other than Debt of the Company under the Credit Agreement or under the MLP Note Guaranty referred to in Section 10.2), and any extensions, refundings, renewals and refinancings (collectively, a "“Refinancing") thereof, provided that (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, (ii) the maturity date of the Debt resulting from such Refinancing shall not be earlier than the maturity date of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced and (iv) no Default or Event of Default exists at the time of such Refinancing;
(c) Debt of the Company and its Restricted Subsidiaries if on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt:
(i) no Default or Event of Default exists; and
(ii) any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(iii) the ratio of Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date to Consolidated Interest Expense is not less than 2.25 to 1; and;
(iv) the ratio of Consolidated Debt to Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date is not greater than 5.00 to 1;
(v) the ratio of Adjusted Consolidated Cash Flow to Adjusted Consolidated Interest Expense for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date is not less than 2.15 to 1; and
(vi) the ratio of Adjusted Consolidated Debt to Adjusted Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date is not greater than (a) 5.40 to 1 if such date is on or prior to April 30, 2001, or (b) 5.25 to 1 if such date is after April 30, 2001;
(d) Debt of the Company and its Restricted Subsidiaries incurred under a Working Capital Facility if, on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other such Debt, the Debt outstanding thereunder will not exceed Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date, provided that there shall have been during the immediately preceding four consecutive fiscal quarters a period of at least 30 consecutive days on each of which the Company and its Restricted Subsidiaries would have been permitted to (but did not) incur on such day under Section 10.1(c) (without reference to the condition stated in clause (i) thereof) Debt in the amount of the average daily balance of Debt outstanding under the Working Capital Facility for such 30-day period, provided further that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3;
(e) Subordinated Debt of the Company if on the date the Company becomes liable with respect to any such Subordinated Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Subordinated Debt of the Company shall not exceed $50,000,000;
(f) Debt of the Company and its Restricted Subsidiaries to a seller of assets or shares purchased by the Company or any Restricted Subsidiary if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Debt of the Company to all such sellers of assets or shares shall not exceed $60,000,000, provided that the agreement or instrument pursuant to which such Debt is incurred (i) contains no financial covenants more restrictive on the Company or its Restricted Subsidiaries than those contained in this Agreement and (ii) contains no events of default (other than in respect of payment of principal and interest on such Debt and in respect of the accuracy of representations and warranties made by the Company or its Restricted Subsidiaries thereunder) which are capable of occurring prior to the occurrence of any Event of Default, and provided, further, that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(g) Debt of the Company under the "“Facility B Commitments" ” or the "“Facility C Commitments" ” pursuant to the Credit Agreement if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the incurrence of such Debt would be permitted under Section 10.1(c) and any Refinancing thereof, provided that (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, (ii) the maturity date of the Debt resulting from such Refinancing shall not be earlier than the maturity date of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced, and (iv) the other terms applicable to the Debt resulting from such Refinancing shall not be more onerous to the Company than the terms applicable to the Debt being Refinanced, provided further that the aggregate amount of all such Debt of the Company permitted by this clause (g) shall not exceed $75,000,000. For the purposes of this Section 10.1, any Person becoming a Restricted Subsidiary after the date hereof shall be deemed, at the time it becomes a Restricted Subsidiary, to have incurred all of its then outstanding Debt, and any Person Refinancing any Debt shall be deemed to have incurred such Debt at the time of such Refinancing.
Appears in 1 contract
Sources: Note Purchase Agreement (Ferrellgas Partners Finance Corp)
Incurrence of Debt. The Company Borrower will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, create, incurissue, assume, guarantee, incur or otherwise be or become directly liable in respect of Debt, if, after the incurrence of such Debt, there would exist the reasonable possibility of a material adverse effect on the business financial position or indirectly liable with respect toresults of operations of the Borrower and its Subsidiaries, any Debtconsidered as a whole, or on the ability of the Borrower to perform its obligations under the Loan Documents, other than:
(a) Debt evidenced by of the NotesBorrower to the Bank under the Loan Documents;
(bi) Debt of the Company and its Restricted Subsidiaries outstanding on the date of the Closing and disclosed in Schedule 5.15 (other than Debt of the Company Borrower under the CIBC Credit Agreement or under the MLP Note Guaranty referred to in Section 10.2), and any extensions, refundings, renewals and refinancings (collectively, a "Refinancing") thereof, provided that (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such RefinancingAgreement, (ii) the maturity date Debt of the Debt resulting from such Refinancing shall not be earlier than Borrower under the maturity date of the Debt being RefinancedNomura Credit Facility, (iii) the average life to maturity Debt of the Borrower under the GACC Credit Facility, (iv) up to $50,000,000 of subordinated debt securities owned subject to master repurchase agreements with financial institutions, and (v) other Debt resulting from such Refinancing shall not be less than the average life to maturity of the Borrower on terms and conditions similar to those applicable to the Debt being Refinanced described in clauses (i), (ii), (iii) and (iv) of this Subsection; provided that the aggregate amount of all such debt permitted under this subsection (b) shall at no Default or Event of Default exists at the time of such Refinancingexceed $700,000,000;
(c) Debt of the Company and its Restricted Subsidiaries if on Borrower in an amount which does not exceed the date Consolidated Tangible Net Worth of the Company or such Restricted Subsidiary becomes liable with respect Borrower, subject to restrictions reasonably satisfactory to the Bank that the holders of any such Debt and immediately shall not exercise any right or remedy in connection therewith before the date that is one year after giving effect thereto and the concurrent retirement of any other Debt:
(i) no Default or Event of Default exists; and
(ii) any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(iii) the ratio of Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date to Consolidated Interest Expense is not less than 2.25 to 1; and
(iv) the ratio of Consolidated Debt to Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date is not greater than 5.00 to 1Termination Date;
(d) Debt of the Company and its Restricted Subsidiaries incurred under a Working Capital Facility if, on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto Signet Bank/Virginia and the concurrent retirement of any other such Debt, the Debt outstanding thereunder will not exceed Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date, provided banks that there shall have been during the immediately preceding four consecutive fiscal quarters a period of at least 30 consecutive days on each of which the Company and its Restricted Subsidiaries would have been permitted to (but did not) incur on such day under Section 10.1(c) (without reference are parties to the condition stated in clause (i) thereof) Debt in Amended and Restated Credit Agreement, dated as of December 22, 1992, as amended, between the amount of the average daily balance of Debt outstanding under the Working Capital Facility for Borrower, Signet Bank/Virginia, as agent, and such 30-day period, provided further that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3banks;
(e) Subordinated Debt of accrued dividends not otherwise prohibited under the Company if on the date the Company becomes liable with respect to any such Subordinated Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Subordinated Debt of the Company shall not exceed $50,000,000Loan Documents;
(f) Debt accounts payable and accrued expenses incurred in the ordinary course of the Company and its Restricted Subsidiaries to a seller of assets or shares purchased by the Company or any Restricted Subsidiary if on the date the Company becomes liable business with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Debt of the Company to all such sellers of assets or shares shall maturities not exceed $60,000,000, provided that the agreement or instrument pursuant to which such Debt is incurred (i) contains no financial covenants more restrictive on the Company or its Restricted Subsidiaries than those contained in this Agreement and (ii) contains no events of default (other than in respect of payment of principal and interest on such Debt and in respect of the accuracy of representations and warranties made by the Company or its Restricted Subsidiaries thereunder) which are capable of occurring prior to the occurrence of any Event of Default, and provided, further, that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3exceeding one year; and
(g) other Debt of expressly approved by the Company under the "Facility B Commitments" or the "Facility C Commitments" pursuant to the Credit Agreement if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other DebtBank, the incurrence of such Debt would be permitted under Section 10.1(c) and any Refinancing thereof, provided that (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, (ii) the maturity date of the Debt resulting from such Refinancing which approval shall not be earlier than the maturity date of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced, and (iv) the other terms applicable to the Debt resulting from such Refinancing shall not be more onerous to the Company than the terms applicable to the Debt being Refinanced, provided further that the aggregate amount of all such Debt of the Company permitted by this clause (g) shall not exceed $75,000,000. For the purposes of this Section 10.1, any Person becoming a Restricted Subsidiary after the date hereof shall be deemed, at the time it becomes a Restricted Subsidiary, to have incurred all of its then outstanding Debt, and any Person Refinancing any Debt shall be deemed to have incurred such Debt at the time of such Refinancingunreasonably withheld.
Appears in 1 contract
Sources: Credit Agreement (Criimi Mae Inc)
Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiary toSubsidiaries to Incur any Debt (including Acquired Debt); provided, directly or indirectlythat the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, create, incur, assume, guarantee, or otherwise become directly or indirectly liable with respect to, any Debt, other thanimmediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom:
(a1) Debt evidenced by the Notes;
(b) Debt Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries, determined on a Pro Forma Basis, including as if any such Debt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Four Quarter Period had been Incurred and the proceeds thereof had been applied at the beginning of the Four Quarter Period, and any other Debt repaid since the beginning of the Four Quarter Period had been repaid at the beginning of the Four Quarter Period, would be greater than [REDACTED – commercially sensitive information]; and
(2) no Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) Notwithstanding Section 4.09(a), the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(c) For purposes of determining compliance with this Section 4.09:
(1) in the event that an item of Debt meets the criteria of more than one of the types of Debt described in Section 4.09(a) or (b), including categories of Permitted Debt, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt in any manner that complies with Section 4.09 and shall only be required to include the amount and type of such Debt in one of such clauses under Section 4.09 or the definition of “Permitted Debt” hereunder; provided that any Debt outstanding on the Issue Date under any Credit Facility shall at all times be treated as Incurred on the Issue Date pursuant to clause (1) of the definition of “Permitted Debt” hereunder;
(2) Debt permitted by this Section 4.09 need not be permitted solely by reference to one provision permitting such Debt but may be permitted in part by one such provision and in part by one or more other provisions of this Section 4.09 (including categories of Permitted Debt) permitting such Debt; and
(3) Guarantees of, or obligations with respect to letters of credit supporting, Debt that is otherwise included in the determination of a particular amount of Debt shall not be included. The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt for purposes of this Section 4.09. For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt denominated in another currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term Debt, or first committed, in the case of revolving credit Debt; provided that if such Debt is Incurred as Refinancing Debt to refinance Debt denominated in another currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the Closing and disclosed in Schedule 5.15 (other than principal amount of such Refinancing Debt of the Company under the Credit Agreement or under the MLP Note Guaranty referred to in Section 10.2), and any extensions, refundings, renewals and refinancings (collectively, a "Refinancing") thereof, provided that does not exceed (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinancedrefinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, plus (ii) the maturity date aggregate amount of fees, underwriting discounts, defeasance costs, premiums and other costs and expenses Incurred in connection with such refinancing. Notwithstanding any other provision of this covenant, the maximum amount of Debt resulting from such Refinancing that the Company may Incur pursuant to this covenant shall not be earlier than the maturity date deemed to be exceeded solely as a result of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced and (iv) no Default or Event of Default exists at the time of such Refinancing;
(c) Debt of the Company and its Restricted Subsidiaries if on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt:
(i) no Default or Event of Default exists; and
(ii) any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(iii) the ratio of Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date to Consolidated Interest Expense is not less than 2.25 to 1; and
(iv) the ratio of Consolidated Debt to Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date is not greater than 5.00 to 1;
(d) Debt of the Company and its Restricted Subsidiaries incurred under a Working Capital Facility if, on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other such Debt, the Debt outstanding thereunder will not exceed Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date, provided that there shall have been during the immediately preceding four consecutive fiscal quarters a period of at least 30 consecutive days on each of which the Company and its Restricted Subsidiaries would have been permitted to (but did not) incur on such day under Section 10.1(c) (without reference to the condition stated in clause (i) thereof) Debt fluctuations in the amount exchange rate of the average daily balance of Debt outstanding under the Working Capital Facility for such 30-day period, provided further that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3;
(e) Subordinated Debt of the Company if on the date the Company becomes liable with respect to any such Subordinated Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Subordinated Debt of the Company shall not exceed $50,000,000;
(f) Debt of the Company and its Restricted Subsidiaries to a seller of assets or shares purchased by the Company or any Restricted Subsidiary if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Debt of the Company to all such sellers of assets or shares shall not exceed $60,000,000, provided that the agreement or instrument pursuant to which such Debt is incurred (i) contains no financial covenants more restrictive on the Company or its Restricted Subsidiaries than those contained in this Agreement and (ii) contains no events of default (other than in respect of payment of principal and interest on such Debt and in respect of the accuracy of representations and warranties made by the Company or its Restricted Subsidiaries thereunder) which are capable of occurring prior to the occurrence of any Event of Default, and provided, further, that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(g) Debt of the Company under the "Facility B Commitments" or the "Facility C Commitments" pursuant to the Credit Agreement if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the incurrence of such Debt would be permitted under Section 10.1(c) and any Refinancing thereof, provided that (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, (ii) the maturity date of the Debt resulting from such Refinancing shall not be earlier than the maturity date of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced, and (iv) the other terms applicable to the Debt resulting from such Refinancing shall not be more onerous to the Company than the terms applicable to the Debt being Refinanced, provided further that the aggregate amount of all such Debt of the Company permitted by this clause (g) shall not exceed $75,000,000. For the purposes of this Section 10.1, any Person becoming a Restricted Subsidiary after the date hereof shall be deemed, at the time it becomes a Restricted Subsidiary, to have incurred all of its then outstanding Debt, and any Person Refinancing any Debt shall be deemed to have incurred such Debt at the time of such Refinancingcurrencies.
Appears in 1 contract
Incurrence of Debt. The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create, incur, assume, guarantee, or otherwise become directly or indirectly liable with respect to, any Debt, other than:
(a) Debt evidenced by the Notes;
(b) Debt of the Company and its Restricted Subsidiaries outstanding on the date of the Closing and disclosed in Schedule 5.15 (other than Debt of the Company under the Credit Agreement or under the MLP Note Guaranty referred to in Section 10.2), and any extensions, refundings, renewals and refinancings (collectively, a "“Refinancing"”) thereof, provided that (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, (ii) the maturity date of the Debt resulting from such Refinancing shall not be earlier than the maturity date of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced and (iv) no Default or Event of Default exists at the time of such Refinancing;
; ▇▇▇▇▇▇▇▇▇▇, ▇.▇. Note Purchase Agreement (c) Debt of the Company and its Restricted Subsidiaries if on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt:
(i) no Default or Event of Default exists; and
(ii) any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(iii) the ratio of Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date to Consolidated Interest Expense is not less than 2.25 to 1; and
(iv) the ratio of Consolidated Debt to Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date is not greater than 5.00 to 1;
(d) Debt of the Company and its Restricted Subsidiaries incurred under a Working Capital Facility if, on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other such Debt, the Debt outstanding thereunder will not exceed Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date, provided that there shall have been during the immediately preceding four consecutive fiscal quarters a period of at least 30 consecutive days on each of which the Company and its Restricted Subsidiaries would have been permitted to (but did not) incur on such day under Section 10.1(c) (without reference to the condition stated in clause (i) thereof) Debt in the amount of the average daily balance of Debt outstanding under the Working Capital Facility for such 30-day period, provided further that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3;
(e) Subordinated Debt of the Company if on the date the Company becomes liable with respect to any such Subordinated Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Subordinated Debt of the Company shall not exceed $50,000,000;
(f) Debt of the Company and its Restricted Subsidiaries to a seller of assets or shares purchased by the Company or any Restricted Subsidiary if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Debt of the Company to all such sellers of assets or shares shall not exceed $60,000,000, provided that the agreement or instrument pursuant to which such Debt is incurred (i) contains no financial covenants more restrictive on the Company or its Restricted Subsidiaries than those contained in this Agreement and (ii) contains no events of default (other than in respect of payment of principal and interest on such Debt and in respect of the accuracy of representations and warranties made by the Company or its Restricted Subsidiaries thereunder) which are capable of occurring prior to the occurrence of any Event of Default, and provided, further, that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(g) Debt of the Company under the "Facility B Commitments" or the "Facility C Commitments" pursuant to the Credit Agreement if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the incurrence of such Debt would be permitted under Section 10.1(c) and any Refinancing thereof, provided that (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, (ii) the maturity date of the Debt resulting from such Refinancing shall not be earlier than the maturity date of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced, and (iv) the other terms applicable to the Debt resulting from such Refinancing shall not be more onerous to the Company than the terms applicable to the Debt being Refinanced, provided further that the aggregate amount of all such Debt of the Company permitted by this clause (g) shall not exceed $75,000,000. For the purposes of this Section 10.1, any Person becoming a Restricted Subsidiary after the date hereof shall be deemed, at the time it becomes a Restricted Subsidiary, to have incurred all of its then outstanding Debt, and any Person Refinancing any Debt shall be deemed to have incurred such Debt at the time of such Refinancing.
Appears in 1 contract
Sources: Note Purchase Agreement (Ferrellgas Partners Finance Corp)
Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiary toSubsidiaries to Incur any Debt (including Acquired Debt); provided that the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, directly or indirectlyimmediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, create, incur, assume, guarantee, or otherwise become directly or indirectly liable with respect to, any Debt, other than:
(a) Debt evidenced by the Notes;
(b) Debt Total Net Leverage Ratio of the Company and its Restricted Subsidiaries, determined on a Pro Forma Basis, including as if any such Debt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the four fiscal quarter period had been Incurred and the proceeds thereof had been applied at the beginning of the four fiscal quarter period, and any other Debt repaid since the beginning of the four fiscal quarter period had been repaid at the beginning of the four fiscal quarter period, would not exceed 6.50:1.00; provided that, (i) any such Debt Incurred by Restricted Subsidiaries that are not Guarantors pursuant to this Section 4.09(a), when aggregated with Debt Incurred by Restricted Subsidiaries that are not Guarantors pursuant to clauses (1), (20), (21)(i), (23) and (24) of the definition of “Permitted Debt”, shall not exceed an aggregate principal amount outstanding equal to the greater of (x) $58.0 million and (y) 2.5% of Consolidated Total Assets (in each case, determined on the date of the Closing such Incurrence) and disclosed in Schedule 5.15 (other than ii) prior to January 1, 2019, such Debt may only be Incurred to finance Investments permitted under clause (6) of the definition of “Permitted Investments.”
(b) Notwithstanding Section 4.09(a), the Company under and its Restricted Subsidiaries may Incur Permitted Debt.
(c) For purposes of determining compliance with this Section 4.09:
(1) in the Credit Agreement or under event that an item of Debt meets the MLP Note Guaranty referred to criteria of more than one of the types of Debt described in Section 10.24.09(a) or (b), including categories of Permitted Debt, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any extensionsportion of such item of Debt in any manner that complies with Section 4.09 and shall only be required to include the amount and type of such Debt in one of such clauses under Section 4.09 or the definition of “Permitted Debt” hereunder; provided that no such reclassification or division shall be permitted with respect to any Debt incurred pursuant to clauses (1) or (23) of the definition of “Permitted Debt” hereunder;
(2) Debt permitted by this Section 4.09 need not be permitted solely by reference to one provision permitting such Debt but may be permitted in part by one such provision and in part by one or more other provisions of this Section 4.09 (including categories of Permitted Debt) permitting such Debt;
(3) Guarantees of, refundingsor obligations with respect to letters of credit supporting, renewals and refinancings Debt that is otherwise included in the determination of a particular amount of Debt shall not be included; and
(collectively4) in the event that the Company or a Restricted Subsidiary enters into or increases commitments under a revolving credit facility or otherwise enters into any commitment to Incur or issue Debt or any related Lien, a "Refinancing") the incurrence or issuance thereof, including the calculation of the Senior Secured Net Leverage Ratio and the Total Net Leverage Ratio or compliance with any cap expressed as a percentage of Consolidated Adjusted EBITDA or Consolidated Total Assets, as applicable, for borrowings and reborrowings thereunder will, at the Company’s option, either be determined (a) on the date of such facility or such entry into or increase in commitments or (b) on the date such amount is borrowed pursuant to any such facility or increased commitment. The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt for purposes of this Section 4.09. For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt denominated in another currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term Debt, or first committed, in the case of revolving credit Debt; provided that if such Debt is Incurred as Refinancing Debt to refinance Debt denominated in another currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Debt does not exceed (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinancedrefinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, plus (ii) the maturity date aggregate amount of fees, underwriting discounts, defeasance costs, premiums and other costs and expenses Incurred in connection with such refinancing. Notwithstanding any other provision of this covenant, the maximum amount of Debt resulting from such Refinancing that the Company may Incur pursuant to this covenant shall not be earlier than the maturity date deemed to be exceeded solely as a result of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced and (iv) no Default or Event of Default exists at the time of such Refinancing;
(c) Debt of the Company and its Restricted Subsidiaries if on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt:
(i) no Default or Event of Default exists; and
(ii) any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(iii) the ratio of Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date to Consolidated Interest Expense is not less than 2.25 to 1; and
(iv) the ratio of Consolidated Debt to Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date is not greater than 5.00 to 1;
(d) Debt of the Company and its Restricted Subsidiaries incurred under a Working Capital Facility if, on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other such Debt, the Debt outstanding thereunder will not exceed Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date, provided that there shall have been during the immediately preceding four consecutive fiscal quarters a period of at least 30 consecutive days on each of which the Company and its Restricted Subsidiaries would have been permitted to (but did not) incur on such day under Section 10.1(c) (without reference to the condition stated in clause (i) thereof) Debt fluctuations in the amount exchange rate of the average daily balance of Debt outstanding under the Working Capital Facility for such 30-day period, provided further that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3;
(e) Subordinated Debt of the Company if on the date the Company becomes liable with respect to any such Subordinated Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Subordinated Debt of the Company shall not exceed $50,000,000;
(f) Debt of the Company and its Restricted Subsidiaries to a seller of assets or shares purchased by the Company or any Restricted Subsidiary if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Debt of the Company to all such sellers of assets or shares shall not exceed $60,000,000, provided that the agreement or instrument pursuant to which such Debt is incurred (i) contains no financial covenants more restrictive on the Company or its Restricted Subsidiaries than those contained in this Agreement and (ii) contains no events of default (other than in respect of payment of principal and interest on such Debt and in respect of the accuracy of representations and warranties made by the Company or its Restricted Subsidiaries thereunder) which are capable of occurring prior to the occurrence of any Event of Default, and provided, further, that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(g) Debt of the Company under the "Facility B Commitments" or the "Facility C Commitments" pursuant to the Credit Agreement if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the incurrence of such Debt would be permitted under Section 10.1(c) and any Refinancing thereof, provided that (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, (ii) the maturity date of the Debt resulting from such Refinancing shall not be earlier than the maturity date of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced, and (iv) the other terms applicable to the Debt resulting from such Refinancing shall not be more onerous to the Company than the terms applicable to the Debt being Refinanced, provided further that the aggregate amount of all such Debt of the Company permitted by this clause (g) shall not exceed $75,000,000. For the purposes of this Section 10.1, any Person becoming a Restricted Subsidiary after the date hereof shall be deemed, at the time it becomes a Restricted Subsidiary, to have incurred all of its then outstanding Debt, and any Person Refinancing any Debt shall be deemed to have incurred such Debt at the time of such Refinancingcurrencies.
Appears in 1 contract
Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiary toSubsidiaries to Incur any Debt (including Acquired Debt); provided, directly or indirectlythat the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, create, incur, assume, guarantee, or otherwise become directly or indirectly liable with respect to, any Debt, other than:
immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom: (a1) Debt evidenced by the Notes;
(b) Debt Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries outstanding Subsidiaries, determined on the date of the Closing and disclosed in Schedule 5.15 a Pro Forma Basis, including as if any such Debt (including any other than Debt of the Company under the Credit Agreement or under the MLP Note Guaranty referred to in Section 10.2being Incurred contemporaneously), and any extensions, refundings, renewals and refinancings (collectively, a "Refinancing") thereof, provided that (i) other Debt Incurred since the principal amount beginning of the Debt resulting from such Refinancing shall not exceed Four Quarter Period had been Incurred and the outstanding principal amount proceeds thereof had been applied at the beginning of such Debt being Refinancedthe Four Quarter Period, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, (ii) other Debt repaid since the maturity date beginning of the Debt resulting from such Refinancing shall not be earlier than Four Quarter Period had been repaid at the maturity date beginning of the Debt being RefinancedFour Quarter Period, (iii) the average life would be greater than 2.00 to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced 1.00; and (iv2) no Default or Event of Default exists shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Refinancing;Debt.
(cb) Debt of Notwithstanding Section 4.09(a), the Company and its Restricted Subsidiaries if may Incur Permitted Debt.
(c) For purposes of determining compliance with this Section 4.09: (1) in the event that an item of Debt meets the criteria of more than one of the types of Debt described in Section 4.09(a) or (b), including categories of Permitted Debt, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt in any manner that complies with Section 4.09 and shall only be required to include the amount and type of such Debt in one of such clauses under Section 4.09 or the definition of “Permitted Debt” hereunder; provided that any Debt outstanding on the date Issue Date under any Credit Facility shall at all times be treated as Incurred on the Company Issue Date pursuant to clause (1) of the definition of “Permitted Debt” hereunder; (2) Debt permitted by this Section 4.09 need not be permitted solely by reference to one provision permitting such Debt but may be permitted in part by one such provision and in part by one or more other provisions of this Section 4.09 (including categories of Permitted Debt) permitting such Restricted Subsidiary becomes liable Debt; and (3) Guarantees of, or obligations with respect to any such letters of credit supporting, Debt and immediately after giving effect thereto and that is otherwise included in the concurrent retirement of any other Debt:
(i) no Default or Event of Default exists; and
(ii) any such Debt determination of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(iii) the ratio of Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date to Consolidated Interest Expense is not less than 2.25 to 1; and
(iv) the ratio of Consolidated Debt to Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date is not greater than 5.00 to 1;
(d) Debt of the Company and its Restricted Subsidiaries incurred under a Working Capital Facility if, on the date the Company or such Restricted Subsidiary becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other such Debt, the Debt outstanding thereunder will not exceed Consolidated Cash Flow for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date, provided that there shall have been during the immediately preceding four consecutive fiscal quarters a period of at least 30 consecutive days on each of which the Company and its Restricted Subsidiaries would have been permitted to (but did not) incur on such day under Section 10.1(c) (without reference to the condition stated in clause (i) thereof) Debt in the particular amount of the average daily balance of Debt outstanding under the Working Capital Facility for such 30-day period, provided further that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3;
(e) Subordinated Debt of the Company if on the date the Company becomes liable with respect to any such Subordinated Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Subordinated Debt of the Company shall not exceed $50,000,000;
(f) Debt of the Company and its Restricted Subsidiaries to a seller of assets or shares purchased by the Company or any Restricted Subsidiary if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the aggregate amount of all outstanding Debt of the Company to all such sellers of assets or shares shall not exceed $60,000,000, provided that the agreement or instrument pursuant to which such Debt is incurred (i) contains no financial covenants more restrictive on the Company or its Restricted Subsidiaries than those contained in this Agreement and (ii) contains no events of default (other than in respect of payment of principal and interest on such Debt and in respect of the accuracy of representations and warranties made by the Company or its Restricted Subsidiaries thereunder) which are capable of occurring prior to the occurrence of any Event of Default, and provided, further, that any such Debt of a Restricted Subsidiary is permitted pursuant to Section 10.3; and
(g) Debt of the Company under the "Facility B Commitments" or the "Facility C Commitments" pursuant to the Credit Agreement if on the date the Company becomes liable with respect to any such Debt and immediately after giving effect thereto and the concurrent retirement of any other Debt, the incurrence of such Debt would be permitted under Section 10.1(c) and any Refinancing thereof, provided that (i) the principal amount of the Debt resulting from such Refinancing shall not exceed the outstanding principal amount of such Debt being Refinanced, together with any accrued interest and premium with respect thereto and any and all costs and expenses related to such Refinancing, (ii) the maturity date of the Debt resulting from such Refinancing shall not be earlier than the maturity date of the Debt being Refinanced, (iii) the average life to maturity of the Debt resulting from such Refinancing shall not be less than the average life to maturity of the Debt being Refinanced, and (iv) the other terms applicable to the Debt resulting from such Refinancing shall not be more onerous to the Company than the terms applicable to the Debt being Refinanced, provided further that the aggregate amount of all such Debt of the Company permitted by this clause (g) shall not exceed $75,000,000. For the purposes of this Section 10.1, any Person becoming a Restricted Subsidiary after the date hereof shall be deemed, at the time it becomes a Restricted Subsidiary, to have incurred all of its then outstanding Debt, and any Person Refinancing any Debt shall be deemed to have incurred such Debt at the time of such Refinancingincluded.
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