Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and, while the Company may issue shares of preferred stock, the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stock. The provisions of the first paragraph of this Section 5.09 shall not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”): (i) the incurrence by the Company and its Subsidiaries of Existing Indebtedness; (ii) the incurrence by the Company, and the Guarantee thereof by the Guarantors, of Indebtedness represented by the Notes on the date of this Indenture; (iii) the incurrence by the Company or any of its Subsidiaries of (x) Indebtedness represented by Capital Lease Obligations or purchase money obligations, in each case incurred for the purpose of financing the purchase price or cost of equipment used in the production lines of the Company or any of its Subsidiaries and (y) additional Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement of property, plant or equipment used in the Permitted Business (other than as described in clause (x)) of the Company or any of its Subsidiaries, in the case of this clause (y), in an aggregate principal amount not to exceed $1.0 million in the aggregate outstanding at any time outstanding; (iv) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than Indebtedness owed by one Credit Party to another Credit Party) that was permitted by this Indenture to be incurred pursuant to clauses (i) or (iii) of this paragraph; (v) the incurrence by the Company or any of its Subsidiaries of Indebtedness not to exceed in the aggregate at any time outstanding $5.0 million; provided, however, that (a) such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to this Indenture, the Notes and the Note Guarantees, (b) such Indebtedness matures no less than 181 days following the maturity of the Notes; (vi) the incurrence by the Company or any of its Subsidiaries of Hedging Obligations in the ordinary course of business (other than for speculative purposes); (vii) the incurrence by the Company or any of its Subsidiaries of Indebtedness in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance and surety bonds in the ordinary course of business; (viii) the incurrence by the Company or any of its Subsidiaries of unsecured Indebtedness not to exceed in the aggregate at any time outstanding $1.0 million; (ix) Guarantees by the Company or any of its Subsidiaries of Indebtedness otherwise permitted hereunder; (x) the incurrence of Indebtedness by the Company or any of its Subsidiaries arising from agreements providing for indemnification, contribution, earnout, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or Capital Stock of a Subsidiary otherwise permitted under this Indenture; (xi) the incurrence of intercompany Indebtedness among the Company and any of its Subsidiaries; (xii) the incurrence by the Company or any of its Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within five Business Days. The Company will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the Note Guarantees on substantially identical terms; provided, however, that no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company solely by virtue of being unsecured or by virtue of being secured on a first or junior Lien basis. For purposes of determining compliance with this Section, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt set forth above, or is entitled to be incurred pursuant to the first paragraph of this covenant, the Company will be permitted to classify such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this covenant. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this covenant. Notwithstanding any other provision of this covenant, the maximum amount of Indebtedness that the Company or any Subsidiary may incur pursuant to this covenant shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values. The amount of any Indebtedness outstanding as of any date will be: (i) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount; (ii) the principal amount of the Indebtedness, in the case of any other Indebtedness; and (iii) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of: A. the Fair Market Value of such assets at the date of determination; and B. the amount of the Indebtedness of the other Person.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and, while the Company may issue shares of preferred stock, the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stock. The provisions of the first paragraph of this Section 5.09 shall not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):
(i) the incurrence by the Company and its Subsidiaries of Existing Indebtedness;
(ii) the incurrence by the Company, and the Guarantee thereof by the Guarantors, Company of Indebtedness represented by the Notes on the date of this the Indenture;
(iii) the incurrence by the Company or any of its Subsidiaries of (x) Indebtedness represented by Capital Lease Obligations or purchase money obligations, in each case incurred for the purpose of financing the purchase price or cost of equipment used in the production lines of the Company or any of its Subsidiaries and (y) additional Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement of property, plant or equipment used in the Permitted Business (other than as described in clause (x)) of the Company or any of its Subsidiaries, in the case of this clause (y), in an aggregate principal amount not to exceed $1.0 million in the aggregate outstanding at any time outstanding;
(iv) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than Indebtedness owed by one Credit Party to another Credit Party) that was permitted by this the Indenture to be incurred pursuant to clauses (i) or (iii) of this paragraph;
(v) the incurrence by the Company or any of its Subsidiaries of Indebtedness not to exceed in the aggregate at any time outstanding $5.0 million; provided, however, that (a) such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to this Indenture, the Notes Indenture and the Note GuaranteesNotes, (b) such Indebtedness matures no less than 181 days following the maturity of the Notes;
(vi) the incurrence by the Company or any of its Subsidiaries of Hedging Obligations in the ordinary course of business (other than for speculative purposes);
(vii) the incurrence by the Company or any of its Subsidiaries of Indebtedness in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance and surety bonds in the ordinary course of business;
(viii) the incurrence by the Company or any of its Subsidiaries of unsecured Indebtedness not to exceed in the aggregate at any time outstanding $1.0 million;
(ix) Guarantees by the Company or any of its Subsidiaries of Indebtedness otherwise permitted hereunder;
(x) the incurrence of Indebtedness by the Company or any of its Subsidiaries arising from agreements providing for indemnification, contribution, earnout, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or Capital Stock of a Subsidiary otherwise permitted under this the Indenture;
(xi) the incurrence of intercompany Indebtedness among the Company and any of its Subsidiaries;
(xii) the incurrence by the Company or any of its Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within five Business Days. The Company will not incur, and will not permit any Guarantor to incur, incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the Note Guarantees on substantially identical terms; provided, however, that no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company solely by virtue of being unsecured or by virtue of being secured on a first or junior Lien basis. For purposes of determining compliance with this Section, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt set forth above, or is entitled to be incurred pursuant to the first paragraph of this covenant, the Company will be permitted to classify such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this covenant. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this covenant. Notwithstanding any other provision of this covenant, the maximum amount of Indebtedness that the Company or any Subsidiary may incur pursuant to this covenant shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values. The amount of any Indebtedness outstanding as of any date will be:
(i) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(ii) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(iii) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:
A. the Fair Market Value of such assets at the date of determination; and
B. the amount of the Indebtedness of the other Person.
Appears in 1 contract
Sources: First Supplemental Indenture (Akoustis Technologies, Inc.)
Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “"incur”" or an "incurrence") any Indebtedness (including Acquired Debt), and, while other than Permitted Indebtedness and the Company may issue shares of preferred stock, the Company shall will not issue any Disqualified Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock. The provisions of the first paragraph of this Section 5.09 shall not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):
(i) the incurrence by the Company and its Subsidiaries of Existing Indebtedness;
(ii) the incurrence by the Company, and the Guarantee thereof by the Guarantors, of Indebtedness represented by the Notes on the date of this Indenture;
(iii) the incurrence by the Company or any of its Subsidiaries of (x) Indebtedness represented by Capital Lease Obligations or purchase money obligations, in each case incurred for the purpose of financing the purchase price or cost of equipment used in the production lines of the Company or any of its Subsidiaries and (y) additional Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement of property, plant or equipment used in the Permitted Business (other than as described in clause (x)) of the Company or any of its Subsidiaries, in the case of this clause (y), in an aggregate principal amount not to exceed $1.0 million in the aggregate outstanding at any time outstanding;
(iv) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than Indebtedness owed by one Credit Party to another Credit Party) that was permitted by this Indenture to be incurred pursuant to clauses (i) or (iii) of this paragraph;
(v) the incurrence by the Company or any of its Subsidiaries of Indebtedness not to exceed in the aggregate at any time outstanding $5.0 millionDisqualified Stock; provided, however, that (a) such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to this Indenture, the Notes and the Note Guarantees, (b) such Indebtedness matures no less than 181 days following the maturity of the Notes;
(vi) the incurrence by the Company or any of its Subsidiaries of Hedging Obligations in the ordinary course of business (other than for speculative purposes);
(vii) the incurrence by Subsidiary Guarantor may incur Indebtedness, and the Company or any of its Subsidiaries of may issue Disqualified Stock, if the Consolidated Interest Coverage Ratio for the Company's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance and surety bonds in the ordinary course of business;
(viii) the incurrence by the Company or any of its Subsidiaries of unsecured Indebtedness not to exceed in the aggregate at any time outstanding $1.0 million;
(ix) Guarantees by the Company or any of its Subsidiaries of Indebtedness otherwise permitted hereunder;
(x) the incurrence of Indebtedness by the Company or any of its Subsidiaries arising from agreements providing for indemnification, contribution, earnout, adjustment of purchase price or similar obligations, in each case, is incurred or assumed in connection with such Disqualified Stock is issued would have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the acquisition net proceeds therefrom), as if the additional Indebtedness or disposition Disqualified Stock had been issued or incurred at the beginning of any business, assets or Capital Stock of a Subsidiary otherwise permitted under this Indenture;
(xi) the incurrence of intercompany Indebtedness among the Company and any of its Subsidiaries;
(xii) the incurrence by the Company or any of its Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within five Business Daysfour-quarter period. The Company will shall not incur, and will not permit any Guarantor to incur, incur any Indebtedness (including Permitted DebtIndebtedness) if that Indebtedness is contractually subordinated in right of payment to any other Indebtedness of the Company or such Guarantor Company, unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the Note Guarantees on substantially identical terms; provided, however, that no Indebtedness of the Company will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company solely by virtue of being unsecured or by virtue of being secured on a first or junior Lien basisunsecured. For purposes of determining compliance with this SectionSection 4.09, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories contained in clauses (a) through (m) of the definition of "Permitted Debt set forth above, Indebtedness," or is entitled to be incurred pursuant to the first paragraph of this covenantSection 4.09, the Company will shall be permitted to classify such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this covenant. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this covenant. Notwithstanding any other provision of this covenant, the maximum amount of Indebtedness that the Company or any Subsidiary may incur pursuant to this covenant shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values. The amount of any Indebtedness outstanding as of any date will be:
(i) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(ii) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(iii) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:
A. the Fair Market Value of such assets at the date of determination; and
B. the amount of the Indebtedness of the other PersonSection 4.09.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “"incur”") any Indebtedness (including Acquired Debt), and, while the Company may issue shares of preferred stock, ) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stock. The provisions of ; provided, however, that the first paragraph of this Section 5.09 shall not prohibit the incurrence of Company and any of the following items of its Restricted Subsidiaries that are Guarantors may incur Indebtedness (collectively, “Permitted including Acquired Debt”):) or issue shares of Disqualified Stock if:
(i) the incurrence by Fixed Charge Coverage Ratio for the Company and its Subsidiaries Company's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 2.5 to 1, determined on a pro forma basis (including a pro forma application of Existing Indebtedness;the net proceeds therefrom) as set forth in the definition of Fixed Charge Coverage Ratio; and
(ii) no Default or Event of Default shall have occurred and be continuing at the time such additional Indebtedness is incurred or such Disqualified Stock is issued or would occur as a consequence of the incurrence by of the Companyadditional Indebtedness or the issuance of the Disqualified Stock. Notwithstanding the foregoing, and this Indenture shall not prohibit any of the Guarantee thereof by following (collectively, "Permitted Indebtedness"): (a) the Guarantors, of Indebtedness represented evidenced by the Notes on the date of this Indenture;
and any Guarantees; (iiib) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness and letters of credit pursuant to the Senior Credit Facility (x) Indebtedness represented by Capital Lease Obligations or purchase money obligations, in each case incurred for with letters of credit being deemed to have a principal amount equal to the purpose of financing the purchase price or cost of equipment used in the production lines maximum potential liability of the Company or any of and its Subsidiaries and thereunder) in an aggregate amount (y) additional together with all Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement of property, plant or equipment used in the Permitted Business (other than as described in pursuant to clause (x)e) of the Company or any this paragraph in respect of its Subsidiaries, in the case of Indebtedness previously incurred pursuant to this clause (yb), in an aggregate principal amount ) from time to time outstanding not to exceed the greater of (i) $1.0 195 million, and (ii) an amount equal to the sum of (A) $100 million and (B) 20% of Adjusted Consolidated Net Tangible Assets determined as of the date of the incurrence of such Indebtedness; (c) the incurrence by the Company of the Existing Indebtedness or the guarantee by any Guarantor of the Existing Senior Subordinated Notes in compliance with the aggregate outstanding at any time outstanding;
indenture with respect to Existing Senior Subordinated Notes as in effect on February 14, 1997; (ivd) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness obligations in exchange forrespect of Currency Hedge Obligations, or and obligations in respect of Interest Rate Protection Obligations, but only to the net proceeds extent that the stated aggregate notional amounts of which are used to renew, refund, refinance, replace, defease or discharge any such obligations do not exceed 105% of the aggregate principal amount of the Indebtedness covered by such Interest Rate Protection Obligations; (other than Indebtedness owed by one Credit Party to another Credit Party) that was permitted by this Indenture to be incurred pursuant to clauses (i) or (iii) of this paragraph;
(ve) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness not to exceed in the aggregate at any time outstanding $5.0 millionPermitted Refinancing Indebtedness; provided, however, that (a) such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to this Indenture, the Notes and the Note Guarantees, (b) such Indebtedness matures no less than 181 days following the maturity of the Notes;
(vif) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries; (g) Indebtedness under Oil and Gas Hedging Obligations Contracts, provided that such contracts were entered into in the ordinary course of business for the purpose of limiting risks that arise in the ordinary course of business of the Company and its Restricted Subsidiaries; (other than for speculative purposes);
(viih) the incurrence by the Company or any of its Subsidiaries of Indebtedness not otherwise permitted to be incurred pursuant to this paragraph, provided that the aggregate principal amount (or accreted value, as applicable) of all Indebtedness incurred pursuant to this clause (h), together with all Permitted Refinancing Debt incurred pursuant to clause (e) of this paragraph in respect of workers’ compensation claimsIndebtedness previously incurred pursuant to this clause (h), self-insurance obligations, bankers’ acceptances, performance and surety bonds does not exceed $25.0 million at any one time outstanding; (i) accounts payable or other obligations of the Company or any Restricted Subsidiary to trade creditors created or assumed by the Company or such Subsidiary in the ordinary course of business;
business in connection with the obtaining of goods or services; (viiij) the incurrence by the Company or any Indebtedness consisting of its Subsidiaries of unsecured Indebtedness not to exceed obligations in the aggregate at any time outstanding $1.0 million;
(ix) Guarantees by the Company or any of its Subsidiaries of Indebtedness otherwise permitted hereunder;
(x) the incurrence of Indebtedness by the Company or any of its Subsidiaries arising from agreements providing for indemnification, contribution, earnout, adjustment respect of purchase price adjustments, guarantees or similar obligations, in each case, incurred or assumed indemnities in connection with the acquisition or disposition of any business, assets assets; (k) the issuance of preferred stock or Capital Stock of a Subsidiary otherwise permitted under this Indenture;
(xi) the incurrence of intercompany Non-Recourse Debt by the Company's Unrestricted Subsidiaries, provided, however, that if any such Indebtedness among ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Company; and (l) Indebtedness in respect of bid, performance or surety bonds issued for the account of the Company or any Restricted Subsidiary in the ordinary course of business, including guaranties and any letters of its Subsidiaries;
credit supporting such bid, performance or surety obligations (xiiin each case other than for an obligation for money borrowed); and (m) the incurrence by production imbalances of the Company or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within five Business Days. The Company will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the Note Guarantees on substantially identical terms; provided, however, that no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company solely by virtue of being unsecured or by virtue of being secured on a first or junior Lien basis. For purposes of determining compliance with this Section, in the event that an item ordinary course of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt set forth above, or is entitled to be incurred pursuant to the first paragraph of this covenant, the Company will be permitted to classify such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this covenant. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this covenant. Notwithstanding any other provision of this covenant, the maximum amount of Indebtedness that the Company or any Subsidiary may incur pursuant to this covenant shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values. The amount of any Indebtedness outstanding as of any date will be:
(i) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(ii) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(iii) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:
A. the Fair Market Value of such assets at the date of determination; and
B. the amount of the Indebtedness of the other Personbusiness.
Appears in 1 contract
Sources: Indenture (Forcenergy Inc)