Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space 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") any Indebtedness (including Acquired Debt), and Loral Space shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of Preferred Stock; provided, however, that Loral Space or any Restricted Subsidiary may incur Indebtedness (including Acquired Debt), and Loral Space may issue Disqualified Stock, and any Restricted Subsidiary may issue Preferred Stock, if, after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or Preferred Stock and the application of the proceeds thereof, no Loral Space Default would occur as a consequence of such incurrence or issuance or be continuing following such incurrence or issuance and either (1) the Consolidated Leverage Ratio of Loral Space would be less than 5.0 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of the most recent available quarterly or annual balance sheet is less than 2.0 to 1.0. (b) Nothing contained in paragraph (a) of this Section 4.05 shall prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"): (1) the incurrence by Loral Space and its Restricted Subsidiaries of additional Indebtedness and letters of credit pursuant to Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (1) not to exceed $850 million as of such date of incurrence less the aggregate amount of all Net Proceeds of Asset Sales applied to repay term Indebtedness outstanding under one or more Credit Facilities pursuant to clause (1) of paragraph (b) of Section 4.14; (2) the incurrence by Loral Space and its Restricted Subsidiaries of the Existing Indebtedness; (3) the incurrence by Loral Space of Indebtedness represented by the Subordinated Notes and Loral Space's 9 1/2% Senior Subordinated Notes due 2006; (4) the issuance by a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt); provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this clause (4); (5) the incurrence by Loral Space or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness)that was permitted by this Guaranty to be incurred under paragraph (a) of this Section 4.05 or clauses (2), (3) or this clause (5) of this paragraph (b); (6) the incurrence by Loral Space or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Loral Space and any of its Restricted Subsidiaries; provided, however, that: (A) if Loral Space is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to all Obligations with respect to this Guaranty of the Subordinated Notes; and (B) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space or a Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6); (7) the incurrence by Loral Space or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk or currency exchange rate risk; (8) 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, and the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of the same class of Disqualified Stock or Preferred Stock, as the case may be, will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.05; (9) the incurrence by Loral Space or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (9), not to exceed $50 million; or (10) the incurrence by Restricted Subsidiaries of Guarantees of Indebtedness of Loral Space or any Restricted Subsidiary that is not subordinated to the Guaranty of the Subordinated Notes. (c) Loral Space shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of Loral Space unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty of the Subordinated Notes on substantially identical terms; provided, however, that no Indebtedness of Loral Space shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of Loral Space solely by virtue of being unsecured. (d) For purposes of determining compliance with this Section 4.05, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (10) of paragraph (b) of this Section 4.05, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.05, Loral Space shall be permitted to classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.05.
Appears in 3 contracts
Sources: Subordinated Guaranty (Loral Space & Communications LTD), Subordinated Guaranty (Loral Cyberstar Inc), Subordinated Guaranty (Loral Cyberstar Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space 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") any Indebtedness (including Acquired Debt), ) and Loral Space shall that the Company will not issue any Disqualified Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of Preferred Stockpreferred stock; provided, however, that Loral Space or any Restricted Subsidiary the Company may incur Indebtedness (including Acquired Debt), and Loral Space may ) or issue shares of Disqualified Stock, and any Restricted Subsidiary may issue Preferred Stock, if, after giving effect to Stock if the incurrence of Fixed Charge 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 is incurred or the issuance of such Disqualified Stock or Preferred Stock and the is issued would have been at least 2.0 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds thereoftherefrom), no Loral Space Default would occur as a consequence if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such incurrence or issuance or be continuing following such incurrence or issuance and either (1) the Consolidated Leverage Ratio of Loral Space would be less than 5.0 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as four-quarter period. The provisions of the most recent available quarterly or annual balance sheet is less than 2.0 to 1.0.
(b) Nothing contained in first paragraph (a) of this Section 4.05 shall prohibit covenant will not apply to the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(1i) the incurrence by Loral Space and its Restricted Subsidiaries the Company of additional revolving credit Indebtedness and letters of credit pursuant to New Credit Facilities in an Facility; provided that the aggregate principal amount at any one time of all revolving credit Indebtedness (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) outstanding under this clause (1) the New Credit Facility after giving effect to such incurrence does not to exceed $850 40.0 million as of such date of incurrence less the aggregate amount of all Net Proceeds of Asset Sales applied to repay term revolving credit Indebtedness outstanding under one or more the New Credit Facilities Facility and to permanently reduce the commitment thereunder pursuant to clause (1) of paragraph (b) of the covenant described under Section 4.144.10;
(2ii) the incurrence by Loral Space the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(3iii) the incurrence by Loral Space the Company and the Subsidiary Guarantors of Indebtedness represented by the Subordinated Notes and Loral Space's 9 1/2% Senior Subordinated Notes due 2006the Note Guarantees, respectively;
(4) the issuance by a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt); provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this clause (4);
(5iv) the incurrence by Loral Space the Company or any of its Restricted Subsidiaries of 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 construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary (whether through the direct purchase of assets or the Capital Stock of any Person owning such Assets), in an aggregate principal amount not to exceed $7.5 million;
(v) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in connection with the acquisition of assets or a new Restricted Subsidiary; provided that such Indebtedness was incurred by the prior owner of such assets or such Restricted Subsidiary prior to such acquisition by the Company or one of its Subsidiaries and was not incurred in connection with, or in contemplation of, such acquisition by the Company or one of its Subsidiaries; provided further that the principal amount (or accreted value, as applicable) of such Indebtedness, together with any other outstanding Indebtedness incurred pursuant to this clause (v), does not exceed $5.0 million;
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness)that that was permitted by this Guaranty the Indenture to be incurred under the first paragraph hereof or clauses (ai), (ii), (iii), (iv), (v) or (xv) of this Section 4.05 or clauses (2), (3) or this clause (5) of this paragraph (b)paragraph;
(6vii) the incurrence by Loral Space the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Loral Space the Company and any of its Wholly Owned Restricted Subsidiaries; provided, however, that:
that (Ai) if Loral Space the Company is the obligor on such IndebtednessIndebtedness and the payee is not a Subsidiary Guarantor, such Indebtedness must be is expressly subordinated to the prior payment in full in cash of all Obligations with respect to this Guaranty of the Subordinated Notes; and
Notes and (B) (iii)(A) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space the Company or a Wholly Owned Restricted Subsidiary thereof and (iiB) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space the Company or a Wholly Owned Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);
(7viii) the incurrence by Loral Space the Company or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging currency risk or interest rate risk or currency exchange with respect to any floating rate riskIndebtedness that is permitted by the terms of this Indenture to be outstanding;
(8) ix) the accrual guarantee by the Company or any of interest, the accretion or amortization its Restricted Subsidiaries of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of the same class Company or a Restricted Subsidiary of Disqualified Stock or Preferred Stockthe Company that was permitted to be incurred by another provision of this covenant;
(x) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt; provided, as the case may behowever, will not that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to be constitute an incurrence of Indebtedness or an issuance by a Restricted Subsidiary of Disqualified Stock or Preferred Stock for purposes of the Company that was not permitted by this Section 4.05clause (x);
(9xi) Indebtedness incurred by the Company or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including without limitation to letters of credit in respect to workers' compensation claims or self-insurance, surety bonds or other Indebtedness with respect to reimbursement type obligations regarding workers' compensation claims provided, however, that upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;
(xii) Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, asset or Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition; provided that the maximum aggregate liability of all such Indebtedness shall at no time exceed 50% of the gross proceeds actually received by the Company;
(xiii) obligations in respect of performance and surety bonds and completion guarantees provided by the Company or any Restricted Subsidiary in the ordinary course of business;
(xiv) guarantees incurred in the ordinary course of business in an aggregate principal amount not to exceed $5.0 million; and
(xv) the incurrence by Loral Space the Company or any of its Restricted Subsidiaries of additional Indebtedness Indebtedness, including Attributable Debt incurred after the date of the Indenture, in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (9xv), not to exceed $50 25.0 million; or
(10) the incurrence by Restricted Subsidiaries of Guarantees of Indebtedness of Loral Space or any Restricted Subsidiary that is not subordinated to the Guaranty of the Subordinated Notes.
(c) Loral Space shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of Loral Space unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty of the Subordinated Notes on substantially identical terms; provided, however, that no Indebtedness of Loral Space shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of Loral Space solely by virtue of being unsecured.
(d) . For purposes of determining compliance with this Section 4.05covenant, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1i) through (10xv) of paragraph (b) of this Section 4.05, above or is entitled to be incurred pursuant to the first paragraph (a) of this Section 4.05covenant, Loral Space shall be permitted to the Company shall, in its sole discretion, classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.05covenant and such item of Indebtedness will be treated as having been incurred pursuant to only one of such clauses or pursuant to the first paragraph hereof. The incurrence of Indebtedness pursuant to the first paragraph of the covenant described above shall not be classified as any of the Items in clauses (i) through (xv) above. Accrual of interest and the accretion of accreted value will not be deemed to be an incurrence of Indebtedness for purposes of this covenant.
Appears in 2 contracts
Sources: Supplemental Indenture (Century Parking Inc), Indenture (Standard Parking Ii LLC)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space shall The Issuer will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create, issue, incur, issue, assume, guarantee or otherwise in any manner become directly or indirectly liableliable with respect to or otherwise become responsible for, contingently or otherwise, with respect to the payment of (individually and collectively, "incur") to “Incur” or, as appropriate, an “Incurrence”), any Indebtedness Debt (including any Acquired Debt); provided that the Issuer and any Guarantor will be permitted to Incur Debt (including Acquired Debt), ) if at the time of such Incurrence and Loral Space shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of Preferred Stock; provided, however, that Loral Space or any Restricted Subsidiary may incur Indebtedness (including Acquired Debt), and Loral Space may issue Disqualified Stock, and any Restricted Subsidiary may issue Preferred Stock, if, after giving effect to the incurrence Incurrence of such Indebtedness or the issuance of such Disqualified Stock or Preferred Stock Debt and the application of the proceeds thereof, no Loral Space Default would occur as on a consequence pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which internal financial statements are available immediately preceding the Incurrence of such incurrence or issuance or be continuing following such incurrence or issuance and either (1) the Consolidated Leverage Ratio of Loral Space Debt, taken as one period, would be less greater than 5.0 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of the most recent available quarterly or annual balance sheet is less than 2.0 2.5 to 1.0.
(b) Nothing contained in paragraph (a) of this This Section 4.05 shall 4.09 will not, however, prohibit the incurrence of any of the following items of Indebtedness (collectively, "“Permitted Debt"”):
(1) the incurrence Incurrence by Loral Space and its the Issuer or any Restricted Subsidiaries Subsidiary of additional Indebtedness and letters of credit pursuant to Debt under the Revolving Credit Facilities Facility in an aggregate principal amount at any one time outstanding not to exceed an amount equal to (i) US$40,000,000 (or the Dollar Equivalent thereof), plus (ii) in the case of any refinancing of any Debt permitted under this clause (1) not to exceed $850 million as of such date of incurrence less ), the aggregate amount of all Net Proceeds of Asset Sales applied to repay term Indebtedness outstanding under one or more Credit Facilities pursuant to clause (1) of paragraph (b) of Section 4.14fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing;
(2) the incurrence Incurrence by Loral Space the Issuer of Debt pursuant to the Notes (other than Additional Notes) and its Restricted Subsidiaries the Incurrence of Debt by the Existing IndebtednessGuarantors pursuant to the Guarantees (other than Guarantees of Additional Notes);
(3) any Debt of the incurrence by Loral Space of Indebtedness represented by Issuer or any Restricted Subsidiary outstanding on the Subordinated Notes and Loral Space's 9 1/2% Senior Subordinated Notes due 2006Issue Date;
(4) the issuance Incurrence by a the Issuer or any Restricted Subsidiary of Preferred Stock intercompany Debt between the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that:
(A) if the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt); provided, however, that if Issuer or a Guarantor is the obligor on any such Indebtedness Debt and the lender is not the Issuer or a Guarantor, it is unsecured and expressly subordinated in right of payment to the prior payment in full in cash (whether upon Stated Maturity, acceleration or otherwise) and the performance in full of its obligations under the Notes or its Guarantee, as the case may be; and
(B) (x) any disposition, pledge or transfer of any such Debt to any Person (other than a disposition, pledge or transfer to the Issuer or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing from the Issuer or another Restricted Subsidiary ceases to be Non-Recourse Debt of a Restricted Subsidiary, such event shall will, in each case, be deemed to constitute be an incurrence Incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was such Debt not permitted by this clause (4Section 4.09(b)(4);
(5) the incurrence Incurrence by Loral Space the Issuer or any Restricted Subsidiary of its Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed in connection with the acquisition, construction, improvement or development of real or personal, movable or immovable equipment, property or assets (including the lease or other purchase of land use rights), in each case, Incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction, improvement or development of property, plant or equipment used in the Issuer’s or any Restricted Subsidiaries Subsidiary’s business (including any related fees or expenses reasonably incurred in connection with such acquisition, construction, improvement or development), including any such purchase through the acquisition of Capital Stock of any Person that owns such real or personal, movable or immovable equipment, property or assets which will, upon acquisition, become a Restricted Subsidiary; provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this clause (5) (together with any refinancings thereof) and still outstanding will not in the aggregate exceed the greater of US$20,000,000 (or the Dollar Equivalent thereof) or 3% of Total Assets;
(6) the Incurrence by the Issuer or any Restricted Subsidiary of Debt arising from agreements providing for guarantees, indemnities or obligations in respect of earnouts, purchase price adjustments or similar obligations in connection with the disposition of assets, including, without limitation, shares of Capital Stock, other than guarantees or similar credit support given by the Issuer or any Restricted Subsidiary of Debt Incurred by any Person acquiring all or any portion of such assets for the purpose of financing such acquisition; provided that the maximum aggregate liability in respect of all such Debt permitted pursuant to this clause (6) will at no time exceed the gross proceeds, including non-cash proceeds (the Fair Market Value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value), actually received from the sale of such assets;
(7) the Incurrence by the Issuer or any Restricted Subsidiary of Debt under Currency Agreements or Interest Rate Agreements entered into in the ordinary course of business and not for speculative purposes (it being understood that hedging in respect of the Notes and the Revolving Credit Facility using Currency Agreements and Interest Rate Agreements will be deemed “in the ordinary course of business” under this clause (7));
(8) the Incurrence by the Issuer or any Restricted Subsidiary of Debt in respect of workers’ compensation and claims arising under similar legislation, or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances or credit;
(9) the Incurrence of Debt by the Issuer or any Restricted Subsidiary arising from (i) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds, provided that such Debt is extinguished within five Business Days of Incurrence, (ii) bankers’ acceptances, advance payments, payments of customs duties, the accounting for value added tax to a relevant taxing authority, performance, surety, judgment, appeal or similar bonds, instruments or obligations and (iii) completion guarantees provided, letters of credit or similar instruments in respect of self insurance and workers compensation obligations obtained by the Issuer or any Restricted Subsidiary, in each case in the ordinary course of business;
(10) the Incurrence by the Issuer or any Restricted Subsidiary of Permitted Refinancing Indebtedness Debt in exchange for, for or the net proceeds of which are used to refund, replace or refinance Debt Incurred by the Issuer or replace Indebtedness (other than intercompany Indebtedness)that was permitted by this Guaranty to be incurred under paragraph (aany Restricted Subsidiary pursuant to, or described in, Section 4.09(a) of this Section 4.05 hereof or clauses (2), (3), (5), (10), (15) or this clause (520) of this paragraph (bSection 4.09(b);
(6) the incurrence by Loral Space or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Loral Space and any of its Restricted Subsidiaries; provided, however, that:
(A) if Loral Space is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to all Obligations with respect to this Guaranty of the Subordinated Notes; and
(B) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space or a Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space or such Restricted Subsidiary, as the case may be; provided, however, that was not permitted by this clause (6);
(7Permitted Refinancing Debt with respect to Acquired Debt Incurred pursuant to Section 4.09(b)(15) the incurrence by Loral Space below, if guaranteed or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk or currency exchange rate risk;
(8) 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 a guarantee from the same terms, and the payment of dividends on Disqualified Stock Issuer or Preferred Stock in the form of additional shares of the same class of Disqualified Stock or Preferred Stock, as the case may beany Guarantor, will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of permitted under this Section 4.05clause (10);
(911) Debt Incurred by the Issuer or any Restricted Subsidiary constituting reimbursement obligations with respect to letters of credit, trade guarantees or similar instruments issued in the ordinary course of business to the extent that such letters of credit, trade guarantees or similar instruments are not drawn upon or, if drawn upon, to the extent such drawing is reimbursed no later than 30 days following receipt by the Issuer or such Restricted Subsidiary of a demand for reimbursement;
(12) Management Advances;
(13) any customary cash or treasury management, cash pooling or netting or setting off arrangements in the ordinary course of business;
(14) without limiting Section 4.12 hereof, Debt arising by reason of any Lien granted by or applicable to such Person securing Debt of the Issuer or any Restricted Subsidiary as long as the Incurrence of such Debt was permitted under the terms of this Indenture;
(15) Acquired Debt Incurred by the Issuer or any Restricted Subsidiary (other than Debt Incurred (i) to provide all or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which a Person becomes a Restricted Subsidiary or was otherwise acquired by the Issuer or a Restricted Subsidiary or (ii) otherwise in connection with or in contemplation of such acquisition); provided that, after giving pro forma effect to such acquisition, the Issuer could Incur at least US$1.00 of additional Debt pursuant to the ratio set forth in Section 4.09(a) hereof; and provided further that if such Acquired Debt is guaranteed by the Issuer or a Restricted Subsidiary, such guarantee will not be deemed to be permitted by this clause (15);
(i) the incurrence guarantee by Loral Space the Issuer or any Guarantor of its Debt of the Issuer or any Guarantor or (ii) the guarantee by a Non-Guarantor Subsidiary of Debt of any other Non-Guarantor Subsidiary, in each case to the extent that the guaranteed Debt was permitted to be Incurred by another provision of this covenant and provided that if the Debt being guaranteed is subordinated to the Notes or is unsecured, then such guarantee will be subordinated or unsecured to the same extent as the Debt guaranteed;
(17) Debt of any Restricted Subsidiaries Subsidiary Incurred as a result of additional Indebtedness (i) any governmental or regulatory restrictions, limitations or penalties in the nature of capital controls, exchange controls or similar restrictions affecting the Incurrence or repayment of intercompany Debt by any Restricted Subsidiary or (ii) any ordinary course country risk management policies of the Issuer or any Restricted Subsidiary restricting or limiting transfers or distributions from the Issuer or any Restricted Subsidiary to the Issuer or any Restricted Subsidiary;
(18) the Incurrence of any Subordinated Shareholder Funding;
(19) payments by the Issuer or any Restricted Subsidiary permitted by Section 4.07(c)(14) hereof;
(20) Bank Deposit Debt Incurred by the Issuer or any Restricted Subsidiary, provided that, on the date of the Incurrence of such Debt and after giving effect thereto, the aggregate principal amount of all such Debt Incurred pursuant to this clause (20) (together with any refinancings thereof) does not exceed an amount equal to US$35,000,000 (or the Dollar Equivalent thereof);
(21) unsecured Debt of the Issuer consisting of earnout provisions in connection with the acquisition of assets, including shares of Capital Stock, by the Issuer or any Restricted Subsidiary; and
(22) the Incurrence of Debt by the Issuer or any Restricted Subsidiary (other than and in addition to Debt permitted under clauses (1) through (21) above) in an aggregate principal amount (or accreted value, as applicable) at any one time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (9), outstanding not to exceed $50 million; or
US$20,000,000 (10) or the incurrence by Restricted Subsidiaries of Guarantees of Indebtedness of Loral Space or any Restricted Subsidiary that is not subordinated to the Guaranty of the Subordinated NotesDollar Equivalent thereof).
(c) Loral Space shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of Loral Space unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty of the Subordinated Notes on substantially identical terms; provided, however, that no Indebtedness of Loral Space shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of Loral Space solely by virtue of being unsecured.
(d) For purposes of determining compliance with this Section 4.054.09, in the event that an item of proposed Indebtedness Debt meets the criteria of more than one of the categories of Permitted Debt described in clauses (12) through (1022) of paragraph (bSection 4.09(b) of this Section 4.05hereof, or is entitled to be incurred Incurred pursuant to paragraph (aSection 4.09(a) of this Section 4.05hereof, Loral Space shall the Issuer in its sole discretion will be permitted to classify (and divide) such item of Indebtedness Debt on the date of its incurrence Incurrence in any manner that complies with Section 4.09. Debt under the Revolving Credit Facility will be deemed to have been Incurred in reliance on the exception provided by Section 4.09(b)(1) hereof and may not be reclassified. In addition, any item of Debt initially classified as Incurred pursuant to one of the categories of Permitted Debt described in clauses (2) through (22) of Section 4.09(b) hereof or entitled to be Incurred pursuant to Section 4.09(a) hereof, may later be reclassified (and divided) by the Issuer in its sole discretion such that it will be deemed as having been Incurred pursuant to such new clause or clauses or Section 4.09(a) hereof to the extent that such reclassified Debt could be Incurred pursuant to such new clause or clauses or Section 4.09(a) hereof at the time of such reclassification.
(d) Notwithstanding any other provision of this covenant, the maximum amount of Debt that the Issuer may Incur pursuant to this covenant will not be deemed to be exceeded solely as a result of fluctuations in the exchange rates of currencies.
(1) Obligations in the form of letters of credit, guarantees or Liens, in each case supporting Debt otherwise included in the determination of such particular amount;
(2) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.12 hereof; and
(3) accrual of interest or Preferred Stock dividends, the accretion or amortization of original issue discount, the payment of interest on any Debt in the form of additional Debt with substantially equivalent terms, the reclassification of Preferred Stock as Debt due to a change in accounting principles, and the payment of dividends on Preferred Stock or Redeemable Capital Stock in the form of additional shares of the same class of Preferred Stock or Redeemable Capital Stock, will not, in any case, be treated as Debt that is subject to Section 4.09 hereof; provided, in each such case and except with respect to Subordinated Shareholder Funding, that the amount of any such accrual, accretion, amortization, payment or reclassification is included in the Consolidated Interest Expense of the Issuer as accrued, and provided further, that with respect to clause (e)(3) above (except with respect to accrual of interest and Preferred Stock dividends), the amount of any such accrual, accretion, amortization, payment or reclassification will be included as Debt for purposes of determining the amount of Debt outstanding for the Incurrence of additional Debt.
(f) For purposes of determining compliance with this Section 4.054.09, the principal amount of Debt issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in conformity with IFRS.
(g) The Issuer will not Incur any Debt (including Permitted Debt) that is subordinated in right of payment to any other Debt of the Issuer unless such Debt is also contractually subordinated in right of payment to the Notes on substantially identical terms; provided, however, that no Debt will be deemed to be subordinated in right of payment to any other Debt of the Issuer solely by virtue of being unsecured or by virtue of being secured on a junior Lien basis.
(h) The Guarantors will not Incur any Debt (including Permitted Debt) that is subordinated in right of payment to any Debt of the Guarantors unless such Debt is also contractually subordinated in right of payment to the Guarantees on substantially identical terms; provided, however, that no Debt will be deemed to be subordinated in right of payment to any other Debt of a Guarantor solely by virtue of being unsecured or by virtue of being secured on a junior Lien basis.
Appears in 2 contracts
Sources: Indenture (Nord Anglia Education, Inc.), Indenture (Nord Anglia Education, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space The Issuers shall not, and shall not permit any of its Restricted their 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 Loral Space the Issuers shall not issue any Disqualified Stock and shall not permit any of its Restricted their Subsidiaries to issue any shares of Preferred Stock; provided, however, that Loral Space or any Restricted Subsidiary may incur Indebtedness (including Acquired Debt), and Loral Space may issue Disqualified Stock, and any Restricted Subsidiary may issue Preferred Stock, if, after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or Preferred Stock and the application of the proceeds thereof, no Loral Space Default would occur as a consequence of such incurrence or issuance or be continuing following such incurrence or issuance and either (1) the Consolidated Leverage Ratio of Loral Space would be less than 5.0 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of the most recent available quarterly or annual balance sheet is less than 2.0 to 1.0.
(b) Nothing contained in preferred stock. The first paragraph (a) of this Section 4.05 4.09 shall not prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(1a) the incurrence by Loral Space the Issuers and its Restricted Subsidiaries of additional Indebtedness and letters of credit pursuant to Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (1) not to exceed $850 million as of such date of incurrence less the aggregate amount of all Net Proceeds of Asset Sales applied to repay term Indebtedness outstanding under one or more Credit Facilities pursuant to clause (1) of paragraph (b) of Section 4.14;
(2) the incurrence by Loral Space and its Restricted their Subsidiaries of the Existing Indebtedness;
(3b) the incurrence by Loral Space the Issuers of Indebtedness represented by the Subordinated Notes and Loral Space's 9 1/2% Senior the Subordinated Notes due 2006Notes;
(4c) with respect to lease or rental commitments to lessees (i) existing as of the issuance date hereof or (ii) permitted to be incurred by a Subsidiary of Preferred Stock or Foreign Subsidiaries after the date hereof in accordance with Section 4.12, the incurrence by Loral Space's the Issuers or any of their Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt); providedIndebtedness represented by purchase money obligations incurred for the purpose of financing all or any part of the purchase price or cost of equipment leased or sold to, howeveror otherwise financed for, that if any a customer of the business of the Issuers or such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to constitute an incurrence of refund, refinance or replace any Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by incurred pursuant to this clause (4c), not to exceed $10.0 million at any time outstanding;
(5d) the incurrence by Loral Space (i) the Issuers or any of its Restricted their Subsidiaries or (ii) with respect to clause (b) of this Section 4.09, the Issuers, of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness)that Indebtedness) that was permitted by this Guaranty Indenture to be incurred under paragraph clauses (a), (b), (c), (d), (g), (i) or (k) of this Section 4.05 or clauses (2), (3) or this clause (5) of this paragraph (b)paragraph;
(6e) the incurrence by Loral Space the Issuers or any of its Restricted their Subsidiaries of intercompany Indebtedness between or among Loral Space the Issuers and any of its Restricted their Subsidiaries; provided, however, that:
(Ai) if Loral Space either the Company or NLC is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to this Guaranty of the Subordinated Notes; and
(B) (i1) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space the Issuers or a Restricted Subsidiary thereof of the Issuers and (ii2) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space the Company, NLC or a Restricted Subsidiary thereof of the Issuers shall be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space the Issuers or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6e);
(7f) the incurrence by Loral Space the Issuers or any of its Restricted their Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding or for the purpose of fixing or hedging currency exchange rate risk;
(8) g) 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, and the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of the same class of Disqualified Stock or Preferred Stock, as the case may be, will shall not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.054.09;
(9h) Indebtedness of the incurrence by Loral Space Issuers or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (9), not to exceed $50 million; or
(10) the incurrence by Restricted Subsidiaries of Guarantees of Indebtedness of Loral Space or any Restricted Subsidiary that is not subordinated to the Guaranty of extent that the Subordinated Notes.
(c) Loral Space shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of Loral Space unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty of the Subordinated Notes on substantially identical terms; provided, however, that no Indebtedness of Loral Space shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of Loral Space solely by virtue of being unsecured.
(d) For purposes of determining compliance with this Section 4.05, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (10) of paragraph (b) of this Section 4.05, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.05, Loral Space shall be permitted to classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.05.net proceeds thereof are promptly:
Appears in 2 contracts
Sources: Indenture (Comdisco Holding Co Inc), Indenture (Comdisco Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. On or after the date of this Indenture (ai) Loral Space shall Casella will not, and shall will 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") incur any Indebtedness (including Acquired Debt), and Loral Space shall (ii) Casella will not issue any Disqualified Capital Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of Preferred Stockpreferred stock; provided, however, PROVIDED that Loral Space Casella or any Restricted Subsidiary Guarantor may incur Indebtedness (including Acquired Debt), and Loral Space Casella may issue Disqualified Capital Stock, and any Restricted Subsidiary may issue Preferred Stock, if, after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or Preferred Stock and the application of the proceeds thereof, no Loral Space Default would occur as a consequence of such incurrence or issuance or be continuing following such incurrence or issuance and either (1) if the Consolidated Leverage Fixed Charge Coverage Ratio of Loral Space would be less than 5.0 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of the most recent available quarterly or annual balance sheet is less than at least 2.0 to 1.0.
1.0 (b) Nothing contained in this proviso, the "COVERAGE RATIO EXCEPTION"). -52- The first paragraph (a) of this Section 4.05 shall 4.10 will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted DebtPERMITTED DEBT"):
(1) the incurrence by Loral Space and its Restricted Subsidiaries of additional Indebtedness and letters of credit pursuant under the Senior Credit Facility (with letters of credit being deemed to Credit Facilities have a principal amount equal to the maximum potential liability of Casella and its Restricted Subsidiaries thereunder) in an aggregate principal amount at any one time outstanding under this clause (1) not to exceed $850 375.0 million as of such date of incurrence less LESS the aggregate amount of all Net Proceeds of Asset Sales applied by Casella or any of its Subsidiaries since the date of this Indenture to repay term Indebtedness outstanding under one or more the Senior Credit Facilities Facility pursuant to clause (1) of the second paragraph (b) of Section 4.144.13;
(2) the incurrence by Loral Space Notes issued on the Issue Date, the Exchange Notes and its Restricted Subsidiaries of the Existing IndebtednessSubsidiary Guarantees thereof;
(3) the incurrence by Loral Space of Capital Lease Obligations and Purchase Money Obligations, and Permitted Refinancing Indebtedness represented by the Subordinated Notes and Loral Space's 9 1/2% Senior Subordinated Notes due 2006thereof, in an aggregate amount not to exceed $10.0 million at any time outstanding;
(4) the issuance by a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt); provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this clause (4);
(5) the incurrence by Loral Space or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refundrefinance, refinance (x) Existing Indebtedness or replace (y) Indebtedness (other than intercompany Indebtedness)that was permitted by this Guaranty to be incurred under paragraph the Coverage Ratio Exception or clause (a2) of this Section 4.05 or clauses (2), (3) paragraph or this clause (5) of this paragraph (b4);
(65) the incurrence Indebtedness owed by Loral Space Casella or any of its Restricted Subsidiaries of intercompany Indebtedness between to Casella or among Loral Space and any of its Restricted Subsidiaries; provided, however, PROVIDED that:
(Aa) if Loral Space Casella or any Guarantor is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to this Guaranty the Notes, in the case of Casella, or the Subordinated NotesSubsidiary Guarantee of such Guarantor, in the case of a Guarantor; and
(Bb) (ix) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space Casella or a Wholly Owned Restricted Subsidiary thereof and (iiy) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space Casella or a Wholly Owned Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space Casella or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (5);
(6)) Hedging Obligations with respect to (a) interest rates on any Indebtedness that is permitted by the terms of this Indenture to be outstanding, (b) foreign currency exchange rates, (c) prices of recycled paper, fiber, aluminum, tin, glass, rubber, plastics or other recycled products or (d) the price of fuel required for the operations of the businesses of Casella and its Restricted Subsidiaries; PROVIDED that (i) any such Hedging Obligation of the type described in clauses (b) through (d) will be permitted by this clause (6) only if it was entered into to protect Casella and its Restricted Subsidiaries from fluctuations in foreign currency exchange rates, the prices of recycled paper, fiber, aluminum, tin, glass, rubber, plastics or other recycled products or fuel covered by such agreements, as applicable, and not for speculative purposes, (ii) in the case of Hedging Obligations of the type described in clause (a) above, any such Hedging Obligations will be permitted by this clause (6) only to the extent the notional principal amount of such Hedging Obligations, when incurred, does not exceed the principal amount of the Indebtedness to which such Hedging Obligations relate and (iii) in the case of Hedging Obligations of the type described in clause (b) above, such Hedging Obligations do not increase the Indebtedness of Casella and its Restricted Subsidiaries outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder;
(7) obligations in the incurrence ordinary course of business in respect of workers' compensation claims, self-insurance obligations, performance, surety and similar bonds and completion bonds and bid guarantees with respect to the assets or business of Casella or any of its Restricted Subsidiaries;
(8) (x) the Guarantee by Loral Space Casella or any Guarantor of Indebtedness of Casella or a Guarantor and (y) the guarantee by any Restricted Subsidiary that is not a Guarantor of Indebtedness of any other Restricted Subsidiary that is not a Guarantor; PROVIDED that, in each case, the Indebtedness being guaranteed is permitted to be incurred by another provision of this Indenture;
(9) indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business or assets of Casella or any of its Restricted Subsidiaries or Capital Stock of Hedging Obligations any of its Restricted Subsidiaries; PROVIDED that are incurred for the purpose maximum aggregate liability in respect of fixing or hedging interest rate risk or currency exchange rate riskall of such obligations outstanding under this clause (9) shall at no time exceed the gross proceeds including non-cash proceeds (the fair market value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by Casella and its Restricted Subsidiaries in connection with such dispositions;
(8) 10) Acquired Debt incurred by the accrual debtor prior to the time that the debtor thereunder was acquired by or merged into Casella or any of interestits Subsidiaries, or prior to the accretion time that the related asset was acquired by Casella or amortization any of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same termsits Subsidiaries, and the payment of dividends on Disqualified Stock was not incurred in connection with, or Preferred Stock in the form of additional shares of the same class of Disqualified Stock contemplation of, such acquisition or Preferred Stockmerger, as the case may beand Permitted Refinancing Indebtedness thereof, will in an aggregate amount not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.05exceed $10.0 million at any time outstanding;
(911) Indebtedness arising from the incurrence honoring by Loral Space a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds; PROVIDED that such Indebtedness is extinguished within five business days of incurrence; and
(12) additional Indebtedness in an aggregate amount not to exceed $10.0 million at any time outstanding. Notwithstanding any other provision in this Section 4.10, the maximum amount of Indebtedness that Casella or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred may incur pursuant to this clause (9), not to exceed $50 million; or
(10) the incurrence by Restricted Subsidiaries of Guarantees of Indebtedness of Loral Space or any Restricted Subsidiary that is not subordinated to the Guaranty of the Subordinated Notes.
(c) Loral Space covenant shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of Loral Space unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty of the Subordinated Notes on substantially identical terms; provided, however, that no Indebtedness of Loral Space shall be deemed to be contractually subordinated exceeded as a result of fluctuations in right exchange rates of payment currencies. The outstanding principal amount of any particular Indebtedness shall be counted only once and any obligation arising under any Guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness shall be disregarded, so long as the obligor is permitted to any other Indebtedness of Loral Space solely by virtue of being unsecured.
(d) incur such obligation. For purposes of determining compliance with this Section 4.054.10, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (1012) of paragraph (b) of this Section 4.05above, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.05the Coverage Ratio Exception, Loral Space shall Casella will be permitted to divide and classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.05covenant (PROVIDED that all Indebtedness outstanding under the Senior Credit Facility on the Issue Date shall be deemed to have been incurred pursuant to clause (1) of the preceding paragraph).
Appears in 2 contracts
Sources: Indenture (Casella Waste Systems Inc), Indenture (Kti Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space shall The Parent will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, Incur, 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)Indebtedness, and Loral Space shall the Parent will not issue any Disqualified Stock and shall will not permit any of its the Restricted Subsidiaries to issue any shares of Preferred Stock; provided, however, that Loral Space the Parent will be entitled to Incur Indebtedness or any Restricted Subsidiary may incur Indebtedness (including Acquired Debt), and Loral Space may issue Disqualified Stock, Stock and any Restricted Subsidiary may will be entitled to Incur Indebtedness or issue Preferred Stock, Stock if, on the date of such Incurrence or issuance and after giving effect to thereto on a pro forma basis, the incurrence of such Indebtedness or the issuance of such Disqualified Stock or Preferred Stock and the application of the proceeds thereof, no Loral Space Default would occur as a consequence of such incurrence or issuance or be continuing following such incurrence or issuance and either (1) the Consolidated Leverage Fixed Charge Coverage Ratio of Loral Space would be less than 5.0 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of the most recent available quarterly or annual balance sheet is less than at least 2.0 to 1.0.
(b) Nothing contained in paragraph (a) of this Notwithstanding Section 4.05 shall prohibit 4.09(a), the incurrence of Parent and the Restricted Subsidiaries will be entitled to Incur any or all of the following items of Indebtedness (collectively, "“Permitted Debt"”):
(1) the incurrence by Loral Space and its Restricted Subsidiaries of additional Indebtedness and letters of credit Incurred pursuant to the Credit Facilities in an Agreement; provided, however, that, immediately after giving effect to any such Incurrence, the aggregate principal amount at any one time outstanding of all Indebtedness Incurred under this clause (1) and then outstanding does not to exceed $850 million as of such date of incurrence less 5.6 billion; provided, that (i) the aggregate amount of all Net Proceeds of Asset Sales applied to repay term Parent or the Restricted Subsidiaries can Incur additional Secured Indebtedness outstanding under one or more Credit Facilities pursuant to this clause (1) of paragraph if, after giving pro forma effect to such Incurrence, the Consolidated Secured Debt Ratio would be no greater than 3.5 to 1.0 and (bii) of Section 4.14the Parent or the Restricted Subsidiaries can Incur additional Pari Passu Lien Indebtedness under this clause (1) if, after giving pro forma effect to such Incurrence, the Consolidated First Lien Secured Debt Ratio would be no greater than 3.0 to 1.0;
(2) the incurrence by Loral Space Indebtedness owed to and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by Loral Space of Indebtedness represented held by the Subordinated Notes and Loral Space's 9 1/2% Senior Subordinated Notes due 2006;
(4) the issuance by Parent or a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt)Restricted Subsidiary; provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this clause (4);
(5) the incurrence by Loral Space or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness)that was permitted by this Guaranty to be incurred under paragraph (a) of this Section 4.05 or clauses (2), (3) or this clause (5) of this paragraph (b);
(6) the incurrence by Loral Space or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Loral Space and any of its Restricted Subsidiaries; provided, however, that:
(A) if Loral Space is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to all Obligations with respect to this Guaranty of the Subordinated Notes; and
(B) (i) any subsequent issuance or transfer of Equity Interests any Capital Stock that results in any such Indebtedness being held by a Person other than Loral Space the Parent or a Restricted Subsidiary thereof and (ii) any sale or other subsequent transfer of any such Indebtedness (other than to a Person that is not either Loral Space the Parent or a Restricted Subsidiary thereof Subsidiary) shall be deemed, in each case, to constitute an incurrence the Incurrence of such Indebtedness by Loral Space or such Restricted Subsidiary, as the case may be, obligor thereon that was not permitted by this clause (62);
(73) the incurrence by Loral Space or Notes (including any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk or currency exchange rate riskNote Guarantee but excluding any Additional Notes);
(8) 4) Indebtedness that is outstanding on the accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Issue Date (other than Indebtedness described in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of the same class of Disqualified Stock or Preferred Stock, as the case may be, will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.05;
(9) the incurrence by Loral Space or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (91), not to exceed $50 million; or
(102) the incurrence by Restricted Subsidiaries of Guarantees of Indebtedness of Loral Space or any Restricted Subsidiary that is not subordinated to the Guaranty of the Subordinated Notes.
(c3) Loral Space shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of Loral Space unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty of the Subordinated Notes on substantially identical terms; provided, however, that no Indebtedness of Loral Space shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of Loral Space solely by virtue of being unsecured.
(d) For purposes of determining compliance with this Section 4.05, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (10) of paragraph (b) of this Section 4.05, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.05, Loral Space shall be permitted to classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.05.above);
Appears in 1 contract
Sources: Indenture (Endo International PLC)
Incurrence of Indebtedness and Issuance of Preferred Stock. On or after the date of this Indenture (ai) Loral Space shall Casella will not, and shall will 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") incur any Indebtedness (including Acquired Debt), and Loral Space shall (ii) Casella will not issue any Disqualified Capital Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of Preferred Stockpreferred stock; provided, however, PROVIDED that Loral Space Casella or any Restricted Subsidiary Guarantor may incur Indebtedness (including Acquired Debt), and Loral Space Casella may issue Disqualified Capital Stock, and any Restricted Subsidiary may issue Preferred Stock, if, after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or Preferred Stock and the application of the proceeds thereof, no Loral Space Default would occur as a consequence of such incurrence or issuance or be continuing following such incurrence or issuance and either (1) if the Consolidated Leverage Fixed Charge Coverage Ratio of Loral Space would be less than 5.0 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of the most recent available quarterly or annual balance sheet is less than at least 2.0 to 1.0.
1.0 (b) Nothing contained in this proviso, the "COVERAGE RATIO EXCEPTION"). The first paragraph (a) of this Section 4.05 shall 4.10 will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted DebtPERMITTED DEBT"):
(1) the incurrence by Loral Space and its Restricted Subsidiaries of additional Indebtedness and letters of credit pursuant under the Senior Credit Facility (with letters of credit being deemed to Credit Facilities have a principal amount equal to the maximum potential liability of Casella and its Restricted Subsidiaries thereunder) in an aggregate principal amount at any one time outstanding under this clause (1) not to exceed $850 375.0 million as of such date of incurrence less LESS the aggregate amount of all Net Proceeds of Asset Sales applied by Casella or any of its Subsidiaries since the date of this Indenture to repay term Indebtedness outstanding under one or more the Senior Credit Facilities Facility pursuant to clause (1) of the second paragraph (b) of Section 4.144.13;
(2) the incurrence by Loral Space Notes issued on the Issue Date, the Exchange Notes and its Restricted Subsidiaries of the Existing IndebtednessSubsidiary Guarantees thereof;
(3) the incurrence by Loral Space of Capital Lease Obligations and Purchase Money Obligations, and Permitted Refinancing Indebtedness represented by the Subordinated Notes and Loral Space's 9 1/2% Senior Subordinated Notes due 2006thereof, in an aggregate amount not to exceed $10.0 million at any time outstanding;
(4) the issuance by a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt); provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this clause (4);
(5) the incurrence by Loral Space or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refundrefinance, refinance (x) Existing Indebtedness or replace (y) Indebtedness (other than intercompany Indebtedness)that was permitted by this Guaranty to be incurred under paragraph the Coverage Ratio Exception or clause (a2) of this Section 4.05 or clauses (2), (3) paragraph or this clause (5) of this paragraph (b4);
(65) the incurrence Indebtedness owed by Loral Space Casella or any of its Restricted Subsidiaries of intercompany Indebtedness between to Casella or among Loral Space and any of its Restricted Subsidiaries; provided, however, PROVIDED that:
(Aa) if Loral Space Casella or any Guarantor is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to this Guaranty the Notes, in the case of Casella, or the Subordinated NotesSubsidiary Guarantee of such Guarantor, in the case of a Guarantor; and
(Bb) (ix) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space Casella or a Wholly Owned Restricted Subsidiary thereof and (iiy) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space Casella or a Wholly Owned Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space Casella or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (5);
(6)) Hedging Obligations with respect to (a) interest rates on any Indebtedness that is permitted by the terms of this Indenture to be outstanding, (b) foreign currency exchange rates, (c) prices of recycled paper, fiber, aluminum, tin, glass, rubber, plastics or other recycled products or (d) the price of fuel required for the operations of the businesses of Casella and its Restricted Subsidiaries; PROVIDED that (i) any such Hedging Obligation of the type described in clauses (b) through (d) will be permitted by this clause (6) only if it was entered into to protect Casella and its Restricted Subsidiaries from fluctuations in foreign currency exchange rates, the prices of recycled paper, fiber, aluminum, tin, glass, rubber, plastics or other recycled products or fuel covered by such agreements, as applicable, and not for speculative purposes, (ii) in the case of Hedging Obligations of the type described in clause (a) above, any such Hedging Obligations will be permitted by this clause (6) only to the extent the notional principal amount of such Hedging Obligations, when incurred, does not exceed the principal amount of the Indebtedness to which such Hedging Obligations relate and (iii) in the case of Hedging Obligations of the type described in clause (b) above, such Hedging Obligations do not increase the Indebtedness of Casella and its Restricted Subsidiaries outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder;
(7) obligations in the incurrence ordinary course of business in respect of workers' compensation claims, self-insurance obligations, performance, surety and similar bonds and completion bonds and bid guarantees with respect to the assets or business of Casella or any of its Restricted Subsidiaries;
(8) (x) the Guarantee by Loral Space Casella or any Guarantor of Indebtedness of Casella or a Guarantor and (y) the guarantee by any Restricted Subsidiary that is not a Guarantor of Indebtedness of any other Restricted Subsidiary that is not a Guarantor; PROVIDED that, in each case, the Indebtedness being guaranteed is permitted to be incurred by another provision of this Indenture;
(9) indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business or assets of Casella or any of its Restricted Subsidiaries or Capital Stock of Hedging Obligations any of its Restricted Subsidiaries; PROVIDED that are incurred for the purpose maximum aggregate liability in respect of fixing or hedging interest rate risk or currency exchange rate riskall of such obligations outstanding under this clause (9) shall at no time exceed the gross proceeds including non-cash proceeds (the fair market value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by Casella and its Restricted Subsidiaries in connection with such dispositions;
(8) 10) Acquired Debt incurred by the accrual debtor prior to the time that the debtor thereunder was acquired by or merged into Casella or any of interestits Subsidiaries, or prior to the accretion time that the related asset was acquired by Casella or amortization any of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same termsits Subsidiaries, and the payment of dividends on Disqualified Stock was not incurred in connection with, or Preferred Stock in the form of additional shares of the same class of Disqualified Stock contemplation of, such acquisition or Preferred Stockmerger, as the case may beand Permitted Refinancing Indebtedness thereof, will in an aggregate amount not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.05exceed $10.0 million at any time outstanding;
(911) Indebtedness arising from the incurrence honoring by Loral Space a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds; PROVIDED that such Indebtedness is extinguished within five business days of incurrence; and
(12) additional Indebtedness in an aggregate amount not to exceed $10.0 million at any time outstanding. Notwithstanding any other provision in this Section 4.10, the maximum amount of Indebtedness that Casella or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred may incur pursuant to this clause (9), not to exceed $50 million; or
(10) the incurrence by Restricted Subsidiaries of Guarantees of Indebtedness of Loral Space or any Restricted Subsidiary that is not subordinated to the Guaranty of the Subordinated Notes.
(c) Loral Space covenant shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of Loral Space unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty of the Subordinated Notes on substantially identical terms; provided, however, that no Indebtedness of Loral Space shall be deemed to be contractually subordinated exceeded as a result of fluctuations in right exchange rates of payment currencies. The outstanding principal amount of any particular Indebtedness shall be counted only once and any obligation arising under any Guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness shall be disregarded, so long as the obligor is permitted to any other Indebtedness of Loral Space solely by virtue of being unsecured.
(d) incur such obligation. For purposes of determining compliance with this Section 4.054.10, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (1012) of paragraph (b) of this Section 4.05above, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.05the Coverage Ratio Exception, Loral Space shall Casella will be permitted to divide and classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.05covenant (PROVIDED that all Indebtedness outstanding under the Senior Credit Facility on the Issue Date shall be deemed to have been incurred pursuant to clause (1) of the preceding paragraph).
Appears in 1 contract
Sources: Indenture (Northern Sanitation Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space shall Parent will not, and shall will 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") incur any Indebtedness (including Acquired Debt), and Loral Space shall Parent will not issue any Disqualified Capital Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of Preferred Stock; provided, however, provided that Loral Space Parent or any Restricted Subsidiary may incur Indebtedness (including Acquired Debt), and Loral Space Parent may issue Disqualified Stock, Capital Stock and any a Restricted Subsidiary of Parent may issue Preferred Stock, if the Consolidated Fixed Charge Coverage Ratio is at least 2.0 to 1.0 (this proviso, the “Coverage Ratio Exception”); provided, further, that Non-Guarantor Subsidiaries may not incur Indebtedness under the Coverage Ratio Exception if, after giving pro forma effect to the such incurrence of such Indebtedness or the issuance of such Disqualified Stock or Preferred Stock and the (including pro forma application of the net proceeds thereoftherefrom), no Loral Space Default would occur as a consequence more than an aggregate, together with any Indebtedness of such incurrence or issuance or be continuing following such incurrence or issuance Non-Guarantor Subsidiaries incurred under clause (10) below and either any Permitted Refinancing Indebtedness in respect hereof and thereof incurred pursuant to clause (14) below, of the greater of (x) $150.0 million and (y) 6.0% of Consolidated Leverage Ratio Total Assets of Loral Space Indebtedness of Non-Guarantor Subsidiaries would be less than 5.0 outstanding pursuant to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of the most recent available quarterly or annual balance sheet is less than 2.0 to 1.0.
(b) Nothing contained in this paragraph (a) at such time. The first paragraph of this Section 4.05 shall 4.10 will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "“Permitted Debt"”):
(1) the incurrence by Loral Space and Indebtedness of Parent or any of its Restricted Subsidiaries under the Credit Facilities (including the issuance and creation of additional Indebtedness and letters of credit pursuant to Credit Facilities and bankers’ acceptances thereunder) in an aggregate principal amount at any one time outstanding under this clause (1) not to exceed (i) $850 1,785.0 million as of such date of incurrence less (ii) the aggregate amount of all Net Proceeds of Asset Sales applied to repay term Indebtedness Obligations incurred and outstanding under one or more Credit Facilities pursuant to clause (1) of paragraph (b) of Section 4.14Qualified Receivables Transactions;
(2) the incurrence by Loral Space the Issuer and its Restricted Subsidiaries the Guarantors (a) on the Issue Date of Indebtedness represented by the Notes issued on the Issue Date and the Parent Guarantee and the Subsidiary Guarantees thereof and (b) Existing Indebtedness;
(3) (a) Finance Lease Obligations and (b) Purchase Money Obligations, and Permitted Refinancing Indebtedness of any of the incurrence by Loral Space foregoing, in an aggregate amount under this clause (3) not to exceed at any one time outstanding the greater of Indebtedness represented by the Subordinated Notes (x) $150.0 million and Loral Space's 9 1/2(y) 6.0% Senior Subordinated Notes due 2006of Consolidated Total Assets;
(4) the issuance by a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt); provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this clause (4);
(5) the incurrence by Loral Space or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refundrefinance, refinance or replace Indebtedness (other than intercompany Indebtedness)that was permitted by this Guaranty to be incurred under paragraph (a) of this Section 4.05 or clauses the Coverage Ratio Exception, clause (2), (310) or (15) of this paragraph or this clause (5) of this paragraph (b4);
(65) the incurrence Indebtedness owed by Loral Space Parent or any of its Restricted Subsidiaries of intercompany Indebtedness between to Parent or among Loral Space and any of its Restricted Subsidiaries; provided, however, provided that:
(Aa) if Loral Space the Issuer or any Guarantor is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to this Guaranty the Notes, in the case of the Subordinated NotesIssuer, or the Parent Guarantee or Subsidiary Guarantee, as applicable, of such Guarantor, in the case of a Guarantor; and
(Bb) (ix) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space Parent or a Restricted Subsidiary thereof and (iiy) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space Parent or a Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space Parent or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (5);
(6)) Hedging Obligations, so long as the financial instrument or contract was not entered into for speculative purposes;
(7) obligations in the incurrence ordinary course of business in respect of workers’ compensation claims, self-insurance obligations, performance, surety, reclamation and similar bonds and completion bonds and bid guarantees with respect to the assets or business of Parent or any of its Restricted Subsidiaries;
(8) (x) the Guarantee by Loral Space the Issuer or any Guarantor of Indebtedness of the Issuer or a Guarantor and (y) the guarantee by any Non-Guarantor Subsidiary of Indebtedness of any other Non-Guarantor Subsidiary; provided that, in each case, the Indebtedness being guaranteed is permitted to be incurred by another provision of this Indenture;
(9) indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business or assets of Parent or any of its Restricted Subsidiaries or Capital Stock of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk or currency exchange rate risk;
(8) 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, and the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of the same class of Disqualified Stock or Preferred Stock, as the case may be, will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.05;
(9) the incurrence by Loral Space or any of its Restricted Subsidiaries; provided that the maximum aggregate liability in respect of all of such obligations outstanding under this clause (9) shall at no time exceed the gross proceeds including non-cash proceeds (the Fair Market Value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by Parent and its Restricted Subsidiaries in connection with such dispositions;
(10) Indebtedness of additional Indebtedness in Parent or any Restricted Subsidiary of Parent (including Acquired Debt and earnouts) incurred to finance an aggregate principal amount (acquisition, merger, consolidation or accreted value, as applicable) at any time outstandingamalgamation, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance refinance, replace, defease or replace discharge any Indebtedness incurred pursuant to this clause (910); provided that on the date of such acquisition, merger, consolidation or amalgamation after giving pro forma effect thereto as if the same had occurred at the beginning of the applicable four-quarter period, Parent would either (A) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth in the first paragraph of this Section 4.10; or (B) have a Consolidated Fixed Charge Coverage Ratio of not less than the Consolidated Fixed Charge Coverage Ratio of Parent immediately prior to exceed $50 millionsuch acquisition, merger, consolidation or amalgamation; or
provided, further, that the aggregate principal amount of Indebtedness of Non-Guarantor Subsidiaries incurred under this clause (10) and outstanding at the incurrence by Restricted Subsidiaries time of Guarantees of incurrence, together with any Indebtedness of Loral Space Non-Guarantor Subsidiaries incurred pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth in the first paragraph of this covenant and any Permitted Refinancing Indebtedness in respect hereof and thereof incurred under clause (4), shall not exceed the greater of (x) $150.0 million and (y) 6.0% of Consolidated Total Assets;
(11) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds; provided that such Indebtedness is extinguished within five business days of incurrence;
(12) (x) Indebtedness in respect of intercompany obligations of Parent or any Restricted Subsidiary in respect of accounts payable incurred in connection with goods sold or services rendered in the ordinary course of business and not in connection with the borrowing of money to the extent otherwise permitted hereunder; and (y) Indebtedness arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, in each case entered into in connection with the disposition of any business, assets or Equity Interests in accordance with the requirements of this Indenture;
(13) Indebtedness of Parent or any Restricted Subsidiary in respect of (a) letters of credit, bankers’ acceptances or other similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business, (b) the financing of insurance premiums in the ordinary course of business or (c) Bank Products Obligations;
(14) additional Indebtedness in an aggregate amount under this clause (14) not to exceed at any time outstanding the greater of (x) $250.0 million and (y) 10.0% of Consolidated Total Assets;
(15) Indebtedness or Disqualified Capital Stock of Parent or any Restricted Subsidiary and Preferred Stock of any Restricted Subsidiary in an aggregate principal amount or liquidation preference outstanding at the time of Incurrence, together with Permitted Refinancing Indebtedness in respect thereof, not greater than an amount equal to 100.0% of the amount of net cash proceeds received by Parent and its Restricted Subsidiaries since immediately after the Issue Date from the issue or sale of Equity Interests of Parent or cash contributed to the capital of Parent (in each case other than proceeds of contributions in connection with sales of Disqualified Capital Stock or sales of Equity Interests to, or contributions received from, Parent or any of its Subsidiaries) to the extent such net cash proceeds or cash have not been applied to increase the calculation of the Basket or otherwise applied to make Restricted Payments or Permitted Investments;
(16) (x) Indebtedness representing deferred compensation to employees, consultants or independent contractors of, Parent and its Restricted Subsidiaries incurred in the ordinary course of business; and (y) Indebtedness consisting of obligations of Parent or its Restricted Subsidiaries under deferred compensation to employees, consultants or independent contractors of Parent or its Restricted Subsidiaries or other similar arrangements incurred by such Persons in connection with Permitted Investments;
(17) Indebtedness of Non-Guarantor Subsidiaries; provided, however, that the aggregate principal amount of Indebtedness incurred under this clause (17) and outstanding at the time of incurrence, when aggregated with the principal amount of all other Indebtedness then outstanding and incurred pursuant to this clause (17), together with Permitted Refinancing Indebtedness in respect thereof, does not exceed $50.0 million;
(18) Indebtedness consisting of promissory notes issued by Parent or any of its Restricted Subsidiaries to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the purchase or redemption of Equity Interests of Parent to the extent permitted by Section 4.11; and
(19) Indebtedness incurred by a Receivables Entity or by the Parent or any of its Restricted Subsidiaries in a Qualified Receivables Transaction that is not subordinated recourse to the Guaranty Parent or any other Restricted Subsidiary other than solely in respect of the Subordinated Notes.
(c) Loral Space shall receivables and Related Assets and except for Receivables Repurchase Obligations. Parent will not incur incur, and will not permit the Issuer or any Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of Loral Space the Issuer or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty of Notes and the Subordinated Notes applicable Guarantee on substantially identical the same terms; provided, however, that no Indebtedness of Loral Space shall will be deemed to be contractually subordinated in right of payment to any other Indebtedness of Loral Space the Issuer solely by virtue of being unsecured.
(d) unsecured or by virtue of being secured on a first or junior Lien basis. Notwithstanding any other provision in this Section 4.10, the maximum amount of Indebtedness that Parent or any of its Restricted Subsidiaries may incur pursuant to this Section 4.10 shall not be deemed to be exceeded as a result of fluctuations in exchange rates of currencies. The outstanding principal amount of any particular Indebtedness shall be counted only once and any obligation arising under any Guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness shall be disregarded, so long as the obligor is permitted to incur such obligation. For purposes of determining compliance with this Section 4.054.10, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (1019) of the second paragraph (b) of this Section 4.054.10, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.05the Coverage Ratio Exception, Loral Space shall Parent will be permitted to divide, classify or reclassify (as if incurred at such later time) such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.054.10 (for the avoidance of doubt, including in part pursuant to the Coverage Ratio Exception and in part under one or more categories of Permitted Debt described in clauses (1) through (19)); provided that all Indebtedness outstanding under the Senior Secured Credit Facilities on the Issue Date shall be deemed to have been incurred pursuant to clause (1) of the second paragraph of this Section 4.10 and may not later be reclassified.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space shall not, and shall not permit any of its Restricted Subsidiaries to, directly 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 Loral Space the Borrowers shall not issue any Disqualified Stock and shall not permit any of its their Restricted Subsidiaries to issue any shares of Preferred Stockpreferred stock; provided, however, that Loral Space or any Restricted Subsidiary the Borrowers may incur Indebtedness (including Acquired Debt), and Loral Space may ) or issue Disqualified Stock, and any of their respective Restricted Subsidiary Subsidiaries may incur Indebtedness (including Acquired Debt) or issue Preferred Stockpreferred stock, if, after giving effect so long as the Fixed Charge Coverage Ratio is equal to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or Preferred Stock and the application of the proceeds thereof, no Loral Space Default would occur as a consequence of such incurrence or issuance or be continuing following such incurrence or issuance and either (1) the Consolidated Leverage Ratio of Loral Space would be less greater than 5.0 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of 2.00:1.00 for the most recent available quarterly or annual balance sheet is less than 2.0 to 1.0recently ended Test Period (calculated on a pro forma basis).
(b) Nothing contained in paragraph (aThe provisions of Section 6.01(a) of this Section 4.05 shall not prohibit the incurrence of any of the following items of Indebtedness (collectively, "“Permitted Debt"”):
(1i) (A) the incurrence of Indebtedness and Letters of Credit hereunder and under the other Loan Documents (other than any Indebtedness and Letters of Credit arising from New Commitments pursuant to and in accordance with Section 2.24) and (B) the incurrence by Loral Space the Borrowers, any Subsidiary Guarantor and its Restricted Subsidiaries any Excluded Subsidiary pursuant to and in accordance with clause (c) of additional the definition thereof (and the guarantee thereof by the Borrowers, the Subsidiary Guarantors and/or any Excluded Subsidiary pursuant to and in accordance with clause (c) of the definition thereof) of Indebtedness and letters of credit under other Credit Facilities and Indebtedness and Letters of Credit arising from New Commitments pursuant to Credit Facilities and in accordance with Section 2.24 in an aggregate principal amount at any one time outstanding under this clause (1i)(B) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Parent Borrower and its Restricted Subsidiaries thereunder) not to exceed the difference between (x) (X) prior to the Hurricane Acquisition Closing Date, the greater of (I) $850 million as 10,930,250,000 and (II) 42% of Total Assets, and (Y) on and after the Hurricane Acquisition Closing Date, the greater of (I) $15,000,000,000 and (II) 42% of Total Assets, and (y) the aggregate principal amount at such date of incurrence time outstanding under clause (i)(A) above less the aggregate amount of all repayments, optional or mandatory, of the principal of any term Indebtedness under a Credit Facility that have been made by the Parent Borrower or any of its Restricted Subsidiaries since the Issue Date with the Net Proceeds of Asset Sales applied (other than Excluded Proceeds) and less, without duplication, the aggregate amount of all repayments or commitment reductions with respect to repay term Indebtedness outstanding any revolving credit borrowings under one a Credit Facility that have been made by the Parent Borrower or more Credit Facilities pursuant to clause any of its Restricted Subsidiaries since the Issue Date as a result of the application of the Net Proceeds of Asset Sales (1other than Excluded Proceeds), in each case in accordance with Sections 2.13(b) of paragraph and 6.04 (b) of excluding temporary reductions in revolving credit borrowings as contemplated by Section 4.146.04);
(2ii) the incurrence by Loral Space the Parent Borrower and its Restricted Subsidiaries of the Existing Indebtedness;
(3iii) the incurrence by Loral Space the Borrowers of Indebtedness represented by the Subordinated Senior Notes and Loral Space's 9 1/2% the Senior Subordinated Secured Notes due 2006issued on or prior to the Fourteenth Amendment Effective Date (or, solely with respect to the Senior Secured First Lien Notes issued by the Borrowers in connection with the consummation of the Jetson Acquisition and/or the Hurricane Acquisition referred to in the definition of “Senior Secured Notes”, on or prior to the Jetson Acquisition Closing Date and/or the Hurricane Acquisition Closing Date, as applicable) and the related Guarantees thereof by the Subsidiary Guarantors and any Excluded Subsidiary pursuant to and in accordance with clause (c) of the definition thereof;
(4) the issuance by a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt); provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this clause (4);
(5iv) the incurrence by Loral Space the Parent Borrower or any of its Restricted Subsidiaries of 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 or lease of property (real or personal), plant or equipment used or useful in the business of the Parent Borrower or any of its Restricted Subsidiaries or incurred within 180 days thereafter, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (iv), in an aggregate outstanding principal amount not to exceed as of any date of incurrence (A) prior to the Hurricane Acquisition Closing Date, the greatest of (x) $1,800,000,000, (y) 7.0% of Total Assets and (z) 55.0% of Consolidated Cash Flow for the most recently ended Test Period (calculated on a pro forma basis), and (B) on and after the Hurricane Acquisition Closing Date, the greatest of (x) $3,000,000,000, (y) 7.0% of Total Assets and (z) 55.0% of Consolidated Cash Flow for the most recently ended Test Period (calculated on a pro forma basis) (the “Non-Ratio Based Purchase Money Basket”); provided that, the Parent Borrower or any Restricted Subsidiary may incur additional amounts under this clause (iv) (without regard to, and at any time prior to the utilization of amounts under, the Non-Ratio Based Purchase Money Basket) in an unlimited amount long as the Consolidated Total Net Leverage Ratio does not exceed (A) prior to the Hurricane Acquisition Closing Date, 3.00:1.00 for the most recently ended Test Period (calculated on a pro forma basis), and (B) on and after the Hurricane Acquisition Closing Date, 4.00:1.00 for the most recently ended Test Period (calculated on a pro forma basis).
(v) the incurrence by the Parent Borrower or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance refinance, replace, defease or replace discharge Indebtedness (other than intercompany Indebtedness)that that was permitted by this Guaranty Agreement to be incurred under paragraph (aSection 6.01(a) of this Section 4.05 or clauses (2Sections 6.01(b)(ii), (36.01(b)(iii), 6.01(b)(iv), 6.01(b)(v), 6.01(b)(vi), 6.01(b)(xv), 6.01(b)(xvi), 6.01(b)(xvii), 6.01(b)(xviii), 6.01(b)(xix), 6.01(b)(xxii), 6.01(b)(xxiii), 6.01(b)(xxiv), 6.01(b)(xxv) or this clause (5) of this paragraph (band 6.01(b)(xxvi);
(6vi) the incurrence by Loral Space the Parent Borrower or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Loral Space the Parent Borrower and any of its Restricted Subsidiaries; provided, however, that:
(A1) if Loral Space any Borrower or Subsidiary Guarantor is the obligor on such IndebtednessIndebtedness and the payee is not a Borrower or Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to this Guaranty of the Subordinated NotesGuaranteed Obligations; and
(B) (iA) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space the Parent Borrower or a Restricted Subsidiary thereof and (iiB) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space the Parent Borrower or a Restricted Subsidiary thereof shall Subsidiary; will be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space the Parent Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6vi);
(7vii) the issuance by any of the Parent Borrower’s Restricted Subsidiaries to the Parent Borrower or to any of its Restricted Subsidiaries of shares of preferred stock; provided, however, that:
(1) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Parent Borrower or a Restricted Subsidiary; and
(2) any sale or other transfer of any such preferred stock to a Person that is not either the Parent Borrower or a Restricted Subsidiary; will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (vii);
(viii) the incurrence by Loral Space the Parent Borrower or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk or currency exchange rate riskObligations;
(8) ix) the accrual of interest, Guarantee by (i) the accretion Borrowers or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of the same class Subsidiary Guarantors of Disqualified Stock Indebtedness of the Borrowers or Preferred Stock, as the case may be, will not be deemed a Subsidiary Guarantor that was permitted to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes incurred by another provision of this Section 4.056.01; (ii) any of the Excluded Project Subsidiaries of Indebtedness of any other Excluded Project Subsidiary; and (iii) any of the Excluded Foreign Subsidiaries of Indebtedness of any other Excluded Foreign Subsidiary; provided that, if the Indebtedness being guaranteed is subordinated to or pari passu with the Guaranteed Obligations, then the guarantee shall be subordinated to the same extent as the Indebtedness guaranteed;
(9x) the incurrence by Loral Space the Parent Borrower 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 (except in the case of daylight overdrafts) inadvertently drawn against insufficient funds in the ordinary course of business, so long as such Indebtedness is covered within five Business Days;
(xi) the incurrence by the Parent Borrower or any of its Restricted Subsidiaries of Indebtedness in respect of (i) workers’ compensation claims, self-insurance obligations, bankers’ acceptance and (ii) performance and surety bonds provided by the Parent Borrower or a Restricted Subsidiary in the ordinary course of business;
(xii) the incurrence of Non-Recourse Debt by any Excluded Project Subsidiary, and any Non-Recourse Guarantee in respect thereof;
(xiii) the incurrence of Indebtedness arising (or deemed to be arising) from agreements of the Parent Borrower or any Restricted Subsidiary providing for indemnification, earn-outs, seller notes, adjustment of purchase price or any similar obligations, in each case, incurred or assumed in connection with any acquisition or Investment or the disposition of any business, assets or Equity Interests of any Subsidiary; provided that, the aggregate maximum liability associated with such provisions may not exceed the gross proceeds (including non-cash proceeds) of such disposition;
(xiv) the incurrence by the Parent Borrower or any Restricted Subsidiary of Indebtedness represented by letters of credit, guarantees or other similar instruments supporting Hedging Obligations of the Parent Borrower or any of its Restricted Subsidiaries (other than Excluded Subsidiaries) permitted to be incurred by this Agreement;
(xv) Indebtedness, Disqualified Stock or preferred stock of Persons or assets that are acquired by the Parent Borrower or any Restricted Subsidiary or merged into the Parent Borrower or a Restricted Subsidiary in accordance with the terms of this Agreement; provided that, such Indebtedness, Disqualified Stock or preferred stock is not incurred in contemplation of such acquisition or merger; and provided, further, that after giving effect to such acquisition or merger, either:
(1) the Borrowers would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 6.01(a); or
(2) the Fixed Charge Coverage Ratio would be greater than immediately prior to such acquisition or merger;
(xvi) Environmental CapEx Debt; provided that, prior to the incurrence of any Environmental CapEx Debt, the Parent Borrower shall deliver to the Administrative Agent an Officer’s Certificate designating such Indebtedness as Environmental CapEx Debt;
(xvii) Indebtedness incurred to finance Necessary Capital Expenditures; provided that, prior to the incurrence of any Indebtedness to finance Necessary Capital Expenditures, the Parent Borrower shall deliver to the Administrative Agent an Officer’s Certificate designating such Indebtedness as Necessary CapEx Debt;
(xviii) Indebtedness of the Parent Borrower or any Restricted Subsidiary consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(xix) the incurrence by the Parent Borrower or any of its Restricted Subsidiaries of Contribution Indebtedness;
(xx) the incurrence by the Parent Borrower and/or any of its Restricted Subsidiaries of Indebtedness that constitutes a Permitted Tax Lease;
(xxi) the issuance of Third Party Securities by a Securitization Vehicle and the incurrence of Securitization Related Indebtedness in an aggregate outstanding principal amount not to exceed as of any date of issuance (A) prior to the Hurricane Acquisition Closing Date, the greatest of (x) $2,500,000,000, (y) 10% of Total Assets and (z) 80.0% of Consolidated Cash Flow for the most recently ended Test Period (calculated on a pro forma basis), and (B) on and after the Hurricane Acquisition Closing Date, the greatest of (x) $4,250,000,000, (y) 10% of Total Assets and (z) 80.0% of Consolidated Cash Flow for the most recently ended Test Period (calculated on a pro forma basis), and to the extent constituting Indebtedness, any Standard Securitization Undertaking relating thereto;
(xxii) the incurrence, issuance or assumption by the Parent Borrower and/or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding), including all Permitted Refinancing Indebtedness incurred to refund, refinance refinance, replace, defease or replace discharge any Indebtedness incurred pursuant to this clause (9xxii), in an aggregate outstanding principal amount not to exceed as of any date of incurrence, issuance or assumption (A) prior to the Hurricane Acquisition Closing Date, the greatest of (x) $50 million1,300,000,000, (y) 5.0% of Total Assets and (z) 40.0% of Consolidated Cash Flow for the most recently ended Test Period (calculated on a pro forma basis), and (B) on and after the Hurricane Acquisition Closing Date, the greatest of (x) $2,250,000,000, (y) 5.0% of Total Assets and (z) 40.0% of Consolidated Cash Flow for the most recently ended Test Period (calculated on a pro forma basis); orprovided that, the amount of Indebtedness permitted to be incurred, issued or assumed pursuant to this clause (xxii) shall be reduced on a dollar-for-dollar basis by the amount of Indebtedness incurred in reliance on the Reallocated Amount;
(10xxiii) the incurrence by a Borrower and/or any of its Restricted Subsidiaries of Guarantees senior or subordinated notes (including notes issued in a public offering, Rule 144A or other private placement or bridge financing in lieu of Indebtedness the foregoing) or senior or subordinated loans (and/or commitments in respect of Loral Space any of the foregoing) issued or incurred in lieu of New Commitments (such notes or loans, “Incremental Equivalent Debt”); provided that, (i) the aggregate outstanding principal amount (or committed amount, if applicable) of all Incremental Equivalent Debt shall not exceed the Maximum Incremental Amount less the aggregate principal amount of New Commitments (and loans made pursuant to such New Commitments) established pursuant to Section 2.24, (ii) to the extent any Incremental Equivalent Debt is secured by the Collateral, it shall be secured only on a pari passu or junior basis with the Liens securing the Obligations and be subject to a customary intercreditor agreement reasonably acceptable to the Administrative Agent and the Parent Borrower, (iii) the aggregate outstanding principal amount of Incremental Equivalent Debt that is guaranteed by any Restricted Subsidiary that is not subordinated a Loan Party or secured by assets other than the Collateral (other than cash collateral or letters of credit, which may be used as exclusive security) shall not exceed as of any date of incurrence or issuance (A) prior to the Guaranty Hurricane Acquisition Closing Date, the greatest of (x) $300,000,000, (y) 1.25% of Total Assets and (z) 10.0% of Consolidated Cash Flow for the Subordinated Notes.
most recently ended Test Period (ccalculated on a pro forma basis), and (B) Loral Space on and after the Hurricane Acquisition Closing Date, the greatest of (x) $600,000,000, (y) 1.25% of Total Assets and (z) 10.0% of Consolidated Cash Flow for the most recently ended Test Period (calculated on a pro forma basis); (iv) no Event of Default shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of Loral Space unless such Indebtedness is also contractually subordinated in right of payment immediately before or immediately after giving effect to the Loral Space Guaranty incurrence of the Subordinated Notes on substantially identical terms; provided, however, that no Indebtedness of Loral Space shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of Loral Space solely by virtue of being unsecured.
(d) For purposes of determining compliance with this Section 4.05, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (10) of paragraph (b) of this Section 4.05, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.05, Loral Space shall be permitted to classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.05.
Appears in 1 contract
Sources: Credit Agreement (NRG Energy, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space shall not, and shall not permit any of its Restricted Subsidiaries to, directly 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 Loral Space the Borrower shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of Preferred Stockpreferred stock; provided, however, that Loral Space the Borrower may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Debt)) or issue preferred stock, and Loral Space may issue Disqualified Stock, and any Restricted Subsidiary may issue Preferred Stock, if, after giving effect so long as the Fixed Charge Coverage Ratio is equal to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or Preferred Stock and the application of the proceeds thereof, no Loral Space Default would occur as a consequence of such incurrence or issuance or be continuing following such incurrence or issuance and either (1) the Consolidated Leverage Ratio of Loral Space would be less greater than 5.0 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of 2.00:1.00 for the most recent available quarterly or annual balance sheet is less than 2.0 to 1.0recently ended Test Period (calculated on a pro forma basis).
(b) Nothing contained in paragraph (aThe provisions of Section 6.01(a) of this Section 4.05 shall not prohibit the incurrence of any of the following items of Indebtedness (collectively, "“Permitted Debt"”):
(1i) (A) the incurrence of Indebtedness and Letters of Credit hereunder and under the other Loan Documents (other than any Indebtedness and Letters of Credit arising from New Commitments pursuant to and in accordance with Section 2.24) and (B) the incurrence by Loral Space the Borrower, any Subsidiary Guarantor and its Restricted Subsidiaries any Excluded Subsidiary pursuant to and in accordance with clause (c) of additional the definition thereof (and the guarantee thereof by the Borrower, the Subsidiary Guarantors and/or any Excluded Subsidiary pursuant to and in accordance with clause (c) of the definition thereof) of Indebtedness and letters of credit under other Credit Facilities and Indebtedness and Letters of Credit arising from New Commitments pursuant to Credit Facilities and in accordance with Section 2.24 in an aggregate principal amount at any one time outstanding under this clause (1i)(B) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Borrower and its Restricted Subsidiaries thereunder) not to exceed the difference between (x) the greater of (I) $850 million as 10,930,250,000 and (II) 42% of Total Assets and (y) the aggregate principal amount at such date of incurrence time outstanding under clause (i)(A) above less the aggregate amount of all repayments, optional or mandatory, of the principal of any term Indebtedness under a Credit Facility that have been made by the Borrower or any of its Restricted Subsidiaries since the Issue Date with the Net Proceeds of Asset Sales applied (other than Excluded Proceeds) and less, without duplication, the aggregate amount of all repayments or commitment reductions with respect to repay term Indebtedness outstanding any revolving credit borrowings under one a Credit Facility that have been made by the Borrower or more Credit Facilities pursuant to clause any of its Restricted Subsidiaries since the Issue Date as a result of the application of the Net Proceeds of Asset Sales (1other than Excluded Proceeds), in each case in accordance with Sections 2.13(b) of paragraph and 6.04 (b) of excluding temporary reductions in revolving credit borrowings as contemplated by Section 4.146.04);
(2ii) the incurrence by Loral Space the Borrower and its Restricted Subsidiaries of the Existing Indebtedness;
(3iii) the incurrence by Loral Space the Borrower of Indebtedness represented by the Subordinated Senior Notes and Loral Space's 9 1/2% the Senior Subordinated Secured Notes due 2006issued on or prior to the Eighth Amendment Effective Date (or, solely with respect to the Senior Secured First Lien Notes issues by the Borrower in connection with the consummation of the Jetson Acquisition referred to in the definition of “Senior Secured Notes”, on or prior to the Jetson Acquisition Closing Date) and the related Guarantees thereof by the Subsidiary Guarantors and any Excluded Subsidiary pursuant to and in accordance with clause (c) of the definition thereof;
(4) the issuance by a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt); provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this clause (4);
(5iv) the incurrence by Loral Space the Borrower or any of its Restricted Subsidiaries of 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 or lease of property (real or personal), plant or equipment used or useful in the business of the Borrower or any of its Restricted Subsidiaries or incurred within 180 days thereafter, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (iv), in an aggregate outstanding principal amount not to exceed as of any date of incurrence the greatest of (x) $1,800,000,000, (y) 7.0% of Total Assets and (z) 55.0% of Consolidated Cash Flow for the most recently ended Test Period (the “Non-Ratio Based Purchase Money Basket”); provided that, the Borrower or any Restricted Subsidiary may incur additional amounts under this clause (iv) (without regard to, and at any time prior to the utilization of amounts under, the Non-Ratio Based Purchase Money Basket) in an unlimited amount long as the Consolidated Total Net Leverage Ratio does not exceed 3.00:1.00 for the most recently ended Test Period (calculated on a pro forma basis).
(v) the incurrence by the Borrower or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance refinance, replace, defease or replace discharge Indebtedness (other than intercompany Indebtedness)that that was permitted by this Guaranty Agreement to be incurred under paragraph (aSection 6.01(a) of this Section 4.05 or clauses (2Sections 6.01(b)(ii), (36.01(b)(iii), 6.01(b)(iv), 6.01(b)(v), 6.01(b)(vi), 6.01(b)(xv), 6.01(b)(xvi), 6.01(b)(xvii), 6.01(b)(xviii), 6.01(b)(xix), 6.01(b)(xxii), 6.01(b)(xxiii), 6.01(b)(xxiv), 6.01(b)(xxv) or this clause (5) of this paragraph (band 6.01(b)(xxvi);
(6vi) the incurrence by Loral Space the Borrower or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Loral Space the Borrower and any of its Restricted Subsidiaries; provided, however, that:
(A1) if Loral Space the Borrower or any Subsidiary Guarantor is the obligor on such IndebtednessIndebtedness and the payee is not the Borrower or a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to this Guaranty of the Subordinated NotesGuaranteed Obligations; and
(B) (iA) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space the Borrower or a Restricted Subsidiary thereof and (iiB) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space the Borrower or a Restricted Subsidiary thereof shall Subsidiary; will be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space the Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6vi);
(7vii) the issuance by any of the Borrower’s Restricted Subsidiaries to the Borrower or to any of its Restricted Subsidiaries of shares of preferred stock; provided, however, that:
(1) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Borrower or a Restricted Subsidiary; and
(2) any sale or other transfer of any such preferred stock to a Person that is not either the Borrower or a Restricted Subsidiary; will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (vii);
(viii) the incurrence by Loral Space the Borrower or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk or currency exchange rate riskObligations;
(8) ix) the accrual of interest, Guarantee by (i) the accretion Borrower or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of the same class Subsidiary Guarantors of Disqualified Stock Indebtedness of the Borrower or Preferred Stock, as the case may be, will not be deemed a Subsidiary Guarantor that was permitted to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes incurred by another provision of this Section 4.056.01; (ii) any of the Excluded Project Subsidiaries of Indebtedness of any other Excluded Project Subsidiary; and (iii) any of the Excluded Foreign Subsidiaries of Indebtedness of any other Excluded Foreign Subsidiary; provided that, if the Indebtedness being guaranteed is subordinated to or pari passu with the Guaranteed Obligations, then the guarantee shall be subordinated to the same extent as the Indebtedness guaranteed;
(9x) the incurrence by Loral Space the Borrower 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 (except in the case of daylight overdrafts) inadvertently drawn against insufficient funds in the ordinary course of business, so long as such Indebtedness is covered within five Business Days;
(xi) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness in respect of (i) workers’ compensation claims, self-insurance obligations, bankers’ acceptance and (ii) performance and surety bonds provided by the Borrower or a Restricted Subsidiary in the ordinary course of business;
(xii) the incurrence of Non-Recourse Debt by any Excluded Project Subsidiary, and any Non-Recourse Guarantee in respect thereof;
(xiii) the incurrence of Indebtedness arising (or deemed to be arising) from agreements of the Borrower or any Restricted Subsidiary providing for indemnification, earn-outs, seller notes, adjustment of purchase price or any similar obligations, in each case, incurred or assumed in connection with any acquisition or Investment or the disposition of any business, assets or Equity Interests of any Subsidiary; provided that, the aggregate maximum liability associated with such provisions may not exceed the gross proceeds (including non-cash proceeds) of such disposition;
(xiv) the incurrence by the Borrower or any Restricted Subsidiary of Indebtedness represented by letters of credit, guarantees or other similar instruments supporting Hedging Obligations of the Borrower or any of its Restricted Subsidiaries (other than Excluded Subsidiaries) permitted to be incurred by this Agreement;
(xv) Indebtedness, Disqualified Stock or preferred stock of Persons or assets that are acquired by the Borrower or any Restricted Subsidiary or merged into the Borrower or a Restricted Subsidiary in accordance with the terms of this Agreement; provided that, such Indebtedness, Disqualified Stock or preferred stock is not incurred in contemplation of such acquisition or merger; and provided, further, that after giving effect to such acquisition or merger, either:
(1) the Borrower would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 6.01(a); or
(2) the Fixed Charge Coverage Ratio would be greater than immediately prior to such acquisition or merger;
(xvi) Environmental CapEx Debt; provided that, prior to the incurrence of any Environmental CapEx Debt, the Borrower shall deliver to the Administrative Agent an Officer’s Certificate designating such Indebtedness as Environmental CapEx Debt;
(xvii) Indebtedness incurred to finance Necessary Capital Expenditures; provided that, prior to the incurrence of any Indebtedness to finance Necessary Capital Expenditures, the Borrower shall deliver to the Administrative Agent an Officer’s Certificate designating such Indebtedness as Necessary CapEx Debt;
(xviii) Indebtedness of the Borrower or any Restricted Subsidiary consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(xix) the incurrence by the Borrower or any of its Restricted Subsidiaries of Contribution Indebtedness;
(xx) the incurrence by the Borrower and/or any of its Restricted Subsidiaries of Indebtedness that constitutes a Permitted Tax Lease;
(xxi) the issuance of Third Party Securities by a Securitization Vehicle and the incurrence of Securitization Related Indebtedness in an aggregate outstanding principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (9), not to exceed as of any date of issuance the greatest of (x) $50 million; or
2,500,000,000 (y) 10% of Total Assets and (z) 80.0% of Consolidated Cash Flow for the incurrence by Restricted Subsidiaries of Guarantees of Indebtedness of Loral Space or any Restricted Subsidiary that is not subordinated most recently ended Test Period, and to the Guaranty of the Subordinated Notes.
(c) Loral Space shall not incur extent constituting Indebtedness, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of Loral Space unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty of the Subordinated Notes on substantially identical terms; provided, however, that no Indebtedness of Loral Space shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of Loral Space solely by virtue of being unsecured.
(d) For purposes of determining compliance with this Section 4.05, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (10) of paragraph (b) of this Section 4.05, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.05, Loral Space shall be permitted to classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.05.Standard Securitization Undertaking relating thereto;
Appears in 1 contract
Sources: Credit Agreement (NRG Energy, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space shall The Issuer will not, and shall will 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") incur any Indebtedness (including Acquired Debt), and Loral Space shall the Issuer will not issue any Disqualified Capital Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of Preferred Stock; provided, however, provided that Loral Space the Issuer or any Restricted Subsidiary may incur Indebtedness (including Acquired Debt), and Loral Space the Issuer may issue Disqualified Stock, Capital Stock and any a Restricted Subsidiary of the Issuer may issue Preferred Stock, if the Consolidated Fixed Charge Coverage Ratio is at least 2.0 to 1.0 (this proviso, the “Coverage Ratio Exception”); provided further that Restricted Subsidiaries that are not Guarantors may not incur Indebtedness under the Coverage Ratio Exception if, after giving pro forma effect to the such incurrence of such Indebtedness or the issuance of such Disqualified Stock or Preferred Stock and the (including pro forma application of the net proceeds thereoftherefrom), no Loral Space Default would occur as a consequence more than an aggregate, together with any Indebtedness of such incurrence or issuance or be continuing following such incurrence or issuance Restricted Subsidiaries that are not Subsidiary Guarantors incurred under clause (10) below and either any Permitted Refinancing Indebtedness hereof pursuant to clause (14) below, of the greater of (x) $50.0 million and (y) 7.50% of Consolidated Leverage Ratio Total Assets of Loral Space Indebtedness of Restricted Subsidiaries that are not Guarantors would be less than 5.0 outstanding pursuant to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of the most recent available quarterly or annual balance sheet is less than 2.0 to 1.0.
(b) Nothing contained in this paragraph (a) at such time. The first paragraph of this Section 4.05 shall 4.10 will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "“Permitted Debt"”):
(1) the incurrence by Loral Space and its Restricted Subsidiaries of additional Indebtedness and letters of credit pursuant to Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (1) not to exceed $850 million as of such date of incurrence less the aggregate amount of all Net Proceeds of Asset Sales applied to repay term Indebtedness outstanding under one or more Credit Facilities pursuant to clause (1) of paragraph (b) of Section 4.14;
(2) the incurrence by Loral Space and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by Loral Space of Indebtedness represented by the Subordinated Notes and Loral Space's 9 1/2% Senior Subordinated Notes due 2006;
(4) the issuance by a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt); provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this clause (4);
(5) the incurrence by Loral Space Issuer or any of its Restricted Subsidiaries under the Credit Facilities (including the issuance and creation of Permitted Refinancing Indebtedness in exchange for, or the net proceeds letters of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness)that was permitted by this Guaranty to be incurred under paragraph (acredit and bankers’ acceptances thereunder) of this Section 4.05 or clauses (2), (3) or this clause (5) of this paragraph (b);
(6) the incurrence by Loral Space or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Loral Space and any of its Restricted Subsidiaries; provided, however, that:
(A) if Loral Space is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to all Obligations with respect to this Guaranty of the Subordinated Notes; and
(B) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space or a Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);
(7) the incurrence by Loral Space or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk or currency exchange rate risk;
(8) 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, and the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of the same class of Disqualified Stock or Preferred Stock, as the case may be, will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.05;
(9) the incurrence by Loral Space or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (9), not to exceed $50 million; or
(10i) the incurrence by Restricted Subsidiaries sum of Guarantees (x) $250.0 million and (y) the greater of Indebtedness $90.0 million and 50.0% of Loral Space or any Restricted Subsidiary that is not subordinated Consolidated EBITDA (subject to the Guaranty of the Subordinated Notes.
(c) Loral Space shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated adjustments applicable to “Consolidated EBITDA” as provided for in right of payment to any other Indebtedness of Loral Space unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty of the Subordinated Notes on substantially identical terms; provided, however, that no Indebtedness of Loral Space shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of Loral Space solely by virtue of being unsecured.
(d) For purposes of determining compliance with this Section 4.05, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (10) of paragraph (b) of this Section 4.05, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.05, Loral Space shall be permitted to classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.05.the
Appears in 1 contract
Sources: Indenture (PGT Innovations, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space shall The Parent will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, Incur, 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)Indebtedness, and Loral Space shall the Parent will not issue any Disqualified Stock and shall will not permit any of its the Restricted Subsidiaries to issue any shares of Preferred Stock; provided, however, that Loral Space the Parent will be entitled to Incur Indebtedness or any Restricted Subsidiary may incur Indebtedness (including Acquired Debt), and Loral Space may issue Disqualified Stock, Stock and any Restricted Subsidiary may will be entitled to Incur Indebtedness or issue Preferred Stock, Stock if, on the date of such Incurrence or issuance and after giving effect thereto on a pro forma basis, (i) the Fixed Charge Coverage Ratio would be at least 2.0 to the incurrence of such Indebtedness 1.0 or the issuance of such Disqualified Stock or Preferred Stock and the application of the proceeds thereof, no Loral Space Default would occur as a consequence of such incurrence or issuance or be continuing following such incurrence or issuance and either (1ii) the Consolidated Leverage Total Debt Ratio of Loral Space would be less no greater than 5.0 6.0 to 1.0; provided that, in each case, the then outstanding aggregate principal amount of Indebtedness (including acquired Indebtedness) and Preferred Stock that may be Incurred or issued, as applicable, pursuant to this paragraph by Non-Guarantor Subsidiaries (2other than the Issuer) Loral Space's shall not exceed the greater of $75.0 million and 10.0% of Consolidated Capital Ratio as of the most recent available quarterly or annual balance sheet is less than 2.0 to 1.0Adjusted EBITDA.
(b) Nothing contained in paragraph (a) of this Notwithstanding Section 4.05 shall prohibit 4.09(a), the incurrence of Parent and the Restricted Subsidiaries will be entitled to Incur any or all of the following items of Indebtedness (collectively, "“Permitted Debt"”):
(1) the incurrence by Loral Space and its Restricted Subsidiaries of additional (A) Indebtedness and letters of credit Incurred pursuant to the Credit Facilities in an Agreement; provided, however, that, immediately after giving effect to any such Incurrence, the aggregate principal amount at any one time outstanding of all Indebtedness Incurred under this clause (11)(A) and then outstanding, does not to exceed (i) $850 1,750.0 million as plus (ii) the greater of $760.0 million and 100% Consolidated Adjusted EBITDA; provided, further, that only $500 million of such date Indebtedness Incurred under this clause (1)(A) may be Priority Payment Lien Obligations; and (B)(i) Pari Passu Payment Lien Obligations if, after giving pro forma effect to such Incurrence, the Consolidated First Lien Secured Debt Ratio would be no greater than 4.0 to 1.0 (and, for the avoidance of incurrence less doubt, this clause (i) shall only be available for the aggregate amount Incurrence of all Net Proceeds Pari Passu Payment Lien Obligations and not for any Priority Payment Lien Obligations), (ii) Junior Lien Indebtedness if, after giving pro forma effect to such Incurrence, the Consolidated Secured Debt Ratio would be no greater than 5.0 to 1.0 (and, for the avoidance of Asset Sales applied to repay term doubt, this clause (ii) shall only be available for the Incurrence of Junior Lien Indebtedness), and (iii) any Permitted Refinancing Indebtedness outstanding under one or more Credit Facilities in respect of such Indebtedness Incurred pursuant to this clause (1) of paragraph (b) of Section 4.141)(B);
(2) the incurrence by Loral Space Indebtedness owed to and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by Loral Space of Indebtedness represented held by the Subordinated Notes and Loral Space's 9 1/2% Senior Subordinated Notes due 2006;
(4) the issuance by Parent or a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt)Restricted Subsidiary; provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this clause (4);
(5) the incurrence by Loral Space or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness)that was permitted by this Guaranty to be incurred under paragraph (a) of this Section 4.05 or clauses (2), (3) or this clause (5) of this paragraph (b);
(6) the incurrence by Loral Space or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Loral Space and any of its Restricted Subsidiaries; provided, however, that:
(A) if Loral Space is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to all Obligations with respect to this Guaranty of the Subordinated Notes; and
(B) (i) any subsequent issuance or transfer of Equity Interests any Capital Stock that results in any such Indebtedness being held by a Person other than Loral Space the Parent or a Restricted Subsidiary thereof and (ii) any sale or other subsequent transfer of any such Indebtedness (other than to a Person that is not either Loral Space the Parent or a Restricted Subsidiary thereof Subsidiary) shall be deemed, in each case, to constitute an incurrence the Incurrence of such Indebtedness by Loral Space or such Restricted Subsidiary, as the case may be, obligor thereon that was not permitted by this clause (2);
(3) the Incurrence by the Issuer and any Guarantor of Indebtedness represented by the Notes issued on the Issue Date (other than any Additional Notes), including any Guarantee thereof;
(4) Indebtedness that is outstanding on the Issue Date (other than Indebtedness described in clause (1) or (3) of this Section 4.09(b));
(5) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Subsidiary was acquired by the Parent (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by the Parent); provided, however, that on the date of such acquisition and after giving effect thereto on a pro forma basis, (i) the Parent would be entitled to Incur at least $1.00 of additional Indebtedness pursuant to clause (a) of this Section 4.09, (ii) the Fixed Charge Coverage Ratio would be equal to or greater than 1.75 to 1.0 or (iii) the Fixed Charge Coverage Ratio would not be lower or the Consolidated Total Debt Ratio would not be higher, in each case, than it was immediately prior to such acquisition;
(6) Permitted Refinancing Indebtedness in respect of Indebtedness Incurred pursuant to Section 4.09(a) or Sections 4.09(b)(3), (4), (5), (22) or this clause (6);
(7) Swap Obligations directly related to Indebtedness permitted to be Incurred by the incurrence Parent and the Restricted Subsidiaries pursuant to this Indenture or entered into in the ordinary course of business and not for speculative purposes;
(8) obligations in respect of (i) worker’s compensation and self-insurance and performance, bid, stay, customs, appeal, replevin and surety bonds and performance and completion guarantees and letters of credit supporting such obligations provided by Loral Space the Parent or any Restricted Subsidiary and (ii) trade letters of credit and deferred compensation, severance, pension and health and welfare retirement benefits or the equivalent to current or former officers, directors and employees of the Parent or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk or currency exchange rate riskSubsidiaries;
(8) 9) Indebtedness arising from the accrual honoring by a bank or other financial institution of interesta check, draft, credit card, purchase card or similar instrument drawn against insufficient funds and similar liabilities in the accretion ordinary course of business or amortization consistent with industry practice or other treasury, depositary and cash management services in the ordinary course of original issue discountbusiness or consistent with industry practice; provided that (i) such Indebtedness (other than credit or purchase cards) is extinguished within ten (10) Business Days of notification to the Issuer of its incurrence and (ii) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its Incurrence;
(10) Indebtedness consisting of any Guarantee by (i) the Issuer or a Guarantor of Indebtedness or other Obligations of the Parent or any of the Restricted Subsidiaries, (ii) a Foreign Restricted Subsidiary of Indebtedness or other Obligations of another Foreign Restricted Subsidiary or (iii) a Non-Guarantor Subsidiary (other than the payment Issuer) of interest Indebtedness or other Obligations of another Non-Guarantor Subsidiary (other than the Issuer), in each case so long as the Incurrence of such guaranteed Indebtedness or other obligations by the Parent or such Restricted Subsidiary is permitted under the terms of this Indenture; provided, that, if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the Guarantee must be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(11) (i) Capital Lease Obligations and (ii) Attributable Debt, and Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount on the date of Incurrence that, when taken together with the principal amount of all other Indebtedness then outstanding and Incurred pursuant to this clause (11), does not exceed the greater of $200.0 million and 25.0% of Consolidated Adjusted EBITDA;
(12) Indebtedness of Non-Guarantor Subsidiaries (other than the Issuer) and Foreign Restricted Subsidiaries in an aggregate principal amount on the date of Incurrence that, when taken together with the principal amount of all other Indebtedness then outstanding and Incurred pursuant to this clause (12), does not exceed the greater of $75.0 million and 10.0% of Consolidated Adjusted EBITDA;
(13) Indebtedness Incurred in respect of Purchase Money Indebtedness and Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount on the date of Incurrence that, when taken together with the principal amount of all other Indebtedness then outstanding and Incurred pursuant to this clause (13), does not exceed the greater of $150.0 million and 20.0% of Consolidated Adjusted EBITDA;
(14) Indebtedness of the Parent or any of the Restricted Subsidiaries consisting of (i) the financing of insurance premiums with the providers of such insurance or their affiliates, (ii) take-or-pay or similar obligations contained in supply agreements or (iii) customer deposits and advance payments received from customers for goods and services purchased, in each case, in the ordinary course of business;
(15) Indebtedness of the Parent or any of the Restricted Subsidiaries supported by a letter of credit issued pursuant to the Credit Agreement in a principal amount not in excess of the stated amount of such letter of credit;
(16) Indebtedness in an aggregate amount not to exceed the foreign currency equivalent of the greater of $100.0 million and 12.25% of Consolidated Adjusted EBITDA in respect of letters of credit denominated in currencies other than U.S. dollars;
(17) Foreign Jurisdiction Deposits;
(18) Indebtedness consisting of guarantees of indebtedness or other obligations of joint ventures permitted under clause (19) of the definition of “Permitted Investments”;
(19) Indebtedness Incurred in connection with judgments, decrees, attachments, awards or appeals that do not constitute an Event of Default under Section 6.01(a)(6);
(20) Indebtedness in the form of additional Indebtedness with (i) guarantees of loans and advances to officers, directors, agents, consultants and employees, in an aggregate amount not to exceed the same termsgreater of $30.0 million and 5.0% of Consolidated Adjusted EBITDA at any one time outstanding, and the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares (ii) reimbursements owed to officers, directors, agents, consultants and employees of the same class of Disqualified Stock or Preferred Stock, as the case may be, will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.05;
(9) the incurrence by Loral Space Parent or any of its Restricted Subsidiaries Subsidiaries;
(21) Indebtedness consisting of obligations to make payments to current or former officers, directors and employees of the Parent or any of its Subsidiaries, their respective estates, spouses or former spouses with respect to the cancellation, purchase or redemption of Equity Interests of the Parent or any of its Subsidiaries, to the extent permitted under Section 4.07(b)(5);
(22) Indebtedness of the Issuer or a Guarantor incurred in connection with or in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate, the acquisition by the Issuer or such Guarantor of property used or useful in a Permitted Business (including a Product) (whether through the direct purchase of assets or the purchase of Capital Stock of, or merger or consolidation with, any Person owning such assets); provided, however, on the date of such Incurrence and after giving effect thereto on a pro forma basis, the Parent would be permitted to incur at least $1.00 of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (9), not to exceed $50 million; ora) of this Section 4.09;
(1023) the incurrence by Restricted Subsidiaries of Guarantees of Indebtedness of Loral Space or any Restricted Subsidiary that is not subordinated to the Guaranty of the Subordinated Notes.
(c) Loral Space shall not incur any Indebtedness (including Permitted Non-Recourse Debt) that is contractually subordinated in right of payment to any other Indebtedness of Loral Space unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty of the Subordinated Notes on substantially identical terms; provided, however, that no the aggregate principal amount of any such Indebtedness, when taken together with all other Indebtedness Incurred pursuant to this clause (23) and then outstanding, does not exceed the greater of $100.0 million and 12.5% of Consolidated Adjusted EBITDA;
(24) Indebtedness consisting of obligations under any Permitted Convertible Indebtedness Call Transaction;
(25) Indebtedness of Loral Space shall be deemed to be contractually subordinated in right the Parent or of payment to any other Indebtedness of Loral Space solely by virtue of being unsecured.
(d) For purposes of determining compliance with this Section 4.05, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described Restricted Subsidiaries in clauses (1) through (10) of paragraph (b) of this Section 4.05, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.05, Loral Space shall be permitted to classify such item of Indebtedness an aggregate principal amount on the date of its incurrence Incurrence that, when taken together with all other Indebtedness of the Parent and the Restricted Subsidiaries then outstanding and Incurred pursuant to this clause (25), does not exceed the greater of $230.0 million and 30.0% of Consolidated Adjusted EBITDA, in each case, plus 100% of the net proceeds received by the Parent from the issuance or sale of Equity Interests (other than from (i) Disqualified Stock or (ii) the Rights Offerings);
(26) Indebtedness Incurred pursuant to a Permitted Receivables Facility in an amount not to exceed the greater of $380.0 million and 50.0% of Consolidated Adjusted EBITDA; and
(27) Indebtedness of joint ventures and/or any manner that complies Indebtedness incurred on behalf thereof or representing guarantees of Indebtedness of joint ventures in an aggregate principal amount on the date of Incurrence that, when taken together with the principal amount of all other Indebtedness then outstanding and Incurred pursuant to this Section 4.05.clause (27), does not exceed the greater of $75.0 million and 10.0
Appears in 1 contract
Sources: Indenture (Endo, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. On or after the date of this Indenture (ai) Loral Space shall Casella will not, and shall will 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") incur any Indebtedness (including Acquired Debt), and Loral Space shall (ii) Casella will not issue any Disqualified Capital Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of Preferred Stock; provided, however, provided that Loral Space Casella or any Restricted Subsidiary Guarantor may incur Indebtedness (including Acquired Debt), and Loral Space Casella may issue Disqualified Capital Stock, and any Restricted Subsidiary may issue Preferred Stock, if, after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or Preferred Stock and the application of the proceeds thereof, no Loral Space Default would occur as a consequence of such incurrence or issuance or be continuing following such incurrence or issuance and either (1) if the Consolidated Leverage Fixed Charge Coverage Ratio of Loral Space would be less than 5.0 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of the most recent available quarterly or annual balance sheet is less than at least 2.0 to 1.0.
1.0 (b) Nothing contained in this proviso, the “Coverage Ratio Exception”). The first paragraph (a) of this Section 4.05 shall 4.10 will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "“Permitted Debt"”):
(1) the incurrence by Loral Space and its Restricted Subsidiaries of additional Indebtedness and letters of credit pursuant by Casella or any Guarantor under the Senior Credit Facility (with letters of credit being deemed to Credit Facilities have a principal amount equal to the maximum potential liability of Casella and the Guarantors thereunder) in an aggregate principal amount at any one time outstanding under this clause (1) not to exceed $850 million as 350.0 million, plus (x) the aggregate principal amount of such date of incurrence Second Lien Notes (and any Permitted Refinancing Indebtedness in respect thereof) that have been repurchased, repaid, redeemed or otherwise satisfied from and after the Issue Date, less (y) the aggregate amount of all Net Proceeds of Asset Sales (other than (i) Net Proceeds of the FCR Disposition and (ii) up to $75.0 million of Net Proceeds from Asset Sales of Specified Assets) applied by Casella or any of its Subsidiaries since the date of this Indenture to repay term Indebtedness outstanding under one or more the Senior Credit Facilities Facility pursuant to clause (1) of the third paragraph (b) of Section 4.144.13;
(2) Indebtedness under the incurrence by Loral Space Second Lien Notes Documents, and its Restricted Subsidiaries Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount not to exceed $180.0 million plus (x) the Available Amount less (y) the aggregate principal amount of Second Lien Notes that have been repurchased, repaid, redeemed or otherwise satisfied from and after the Existing IndebtednessIssue Date (to the extent increasing the amount available under clause (1) above), at any time outstanding;
(3) the incurrence by Loral Space Notes issued on the Issue Date and up to the Available Amount of Indebtedness represented by Additional Notes Issued under this Indenture, the Subordinated Exchange Notes and Loral Space's 9 1/2% Senior Subordinated Notes due 2006the Subsidiary Guarantees thereof;
(4) (a) Capital Lease Obligations, (b) Purchase Money Obligations, and (c) industrial revenue bonds or solid waste disposal bonds issued by or at the issuance by a Subsidiary request of Preferred Stock Casella or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt); provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Restricted Subsidiary, and Indebtedness funded by such event shall be deemed to constitute bonds, and Permitted Refinancing Indebtednessof any of the foregoing, in an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by aggregate amount under this clause (4)) not to exceed $50.0 million at any time outstanding;
(5) the incurrence by Loral Space or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refundrefinance, refinance (x) Existing Indebtedness or replace (y) Indebtedness (other than intercompany Indebtedness)that was permitted by this Guaranty to be incurred under paragraph the Coverage Ratio Exception, clause (a3) of this Section 4.05 or clauses (2), (3) paragraph or this clause (5) of this paragraph (b);
(6) the incurrence Indebtedness owed by Loral Space Casella or any of its Restricted Subsidiaries of intercompany Indebtedness between to Casella or among Loral Space and any of its Restricted Subsidiaries; provided, however, provided that:
(Aa) if Loral Space Casella or any Guarantor is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to this Guaranty the Notes, in the case of Casella, or the Subordinated NotesSubsidiary Guarantee of such Guarantor, in the case of a Guarantor; and
(Bb) (ix) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space Casella or a Wholly Owned Restricted Subsidiary thereof and (iiy) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space Casella or a Wholly Owned Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space Casella or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);
(7) Hedging Obligations with respect to (a) interest rates on any Indebtedness that is permitted by the incurrence terms of this Indenture to be outstanding, (b) foreign currency exchange rates, (c) prices of recycled paper, fiber, aluminum, tin, glass, rubber, plastics or other recycled products or (d) the price of fuel required for the operations of the businesses of Casella and its Restricted Subsidiaries; provided that (i) any such Hedging Obligation of the type described in clauses (b) through (d) will be permitted by Loral Space this clause (7) only if it was entered into to protect Casella and its Restricted Subsidiaries from fluctuations in foreign currency exchange rates, the prices of recycled paper, fiber, aluminum, tin, glass, rubber, plastics or other recycled products or fuel covered by such agreements, as applicable, and not for speculative purposes, (ii) in the case of Hedging Obligations of the type described in clause (a) above, any such Hedging Obligations will be permitted by this clause (7) only to the extent the notional principal amount of such Hedging Obligations, when incurred, does not exceed the principal amount of the Indebtedness to which such Hedging Obligations relate and (iii) in the case of Hedging Obligations of the type described in clause (b) above, such Hedging Obligations do not increase the Indebtedness of Casella and its Restricted Subsidiaries outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder;
(8) obligations in the ordinary course of business in respect of workers’ compensation claims, self-insurance obligations, performance, surety and similar bonds and completion bonds and bid guarantees with respect to the assets or business of Casella or any of its Restricted Subsidiaries;
(9) (x) the Guarantee by Casella or any Guarantor of Indebtedness of Casella or a Guarantor and (y) the guarantee by any Restricted Subsidiary that is not a Guarantor of Indebtedness of any other Restricted Subsidiary that is not a Guarantor; provided that, in each case, the Indebtedness being guaranteed is permitted to be incurred by another provision of this Indenture;
(10) indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business or assets of Casella or any of its Restricted Subsidiaries or Capital Stock of Hedging Obligations any of its Restricted Subsidiaries; provided that are incurred for the purpose maximum aggregate liability in respect of fixing or hedging interest rate risk or currency exchange rate riskall of such obligations outstanding under this clause (10) shall at no time exceed the gross proceeds including non-cash proceeds (the fair market value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by Casella and its Restricted Subsidiaries in connection with such dispositions;
(8) 11) Acquired Debt incurred by the accrual debtor prior to the time that the debtor thereunder was acquired by or merged into Casella or any of interestits Subsidiaries, or prior to the accretion time that the related asset was acquired by Casella or amortization any of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same termsits Subsidiaries, and the payment of dividends on Disqualified Stock was not incurred in connection with, or Preferred Stock in the form of additional shares of the same class of Disqualified Stock contemplation of, such acquisition or Preferred Stockmerger, as the case may beand Permitted Refinancing Indebtedness thereof, will in an aggregate amount under this clause (11) not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.05exceed $15.0 million at any time outstanding;
(912) Indebtedness arising from the incurrence honoring by Loral Space a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds; provided that such Indebtedness is extinguished within five business days of incurrence; and
(13) additional Indebtedness in an aggregate amount under this clause (13) not to exceed $20.0 million at any time outstanding (of which no more than $10.0 million may be incurred by Restricted Subsidiaries that are not Guarantors). Notwithstanding any other provision in this Section 4.10, the maximum amount of Indebtedness that Casella or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred may incur pursuant to this clause (9), not to exceed $50 million; or
(10) the incurrence by Restricted Subsidiaries of Guarantees of Indebtedness of Loral Space or any Restricted Subsidiary that is not subordinated to the Guaranty of the Subordinated Notes.
(c) Loral Space covenant shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of Loral Space unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty of the Subordinated Notes on substantially identical terms; provided, however, that no Indebtedness of Loral Space shall be deemed to be contractually subordinated exceeded as a result of fluctuations in right exchange rates of payment currencies. The outstanding principal amount of any particular Indebtedness shall be counted only once and any obligation arising under any Guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness shall be disregarded, so long as the obligor is permitted to any other Indebtedness of Loral Space solely by virtue of being unsecured.
(d) incur such obligation. For purposes of determining compliance with this Section 4.054.10, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (1013) of paragraph (b) of this Section 4.05above, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.05the Coverage Ratio Exception, Loral Space shall Casella will be permitted to divide and classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.05covenant (provided that all Indebtedness outstanding under the Senior Credit Facility on the Issue Date, for the avoidance of doubt only to the extent such Indebtedness is not refinanced, repaid or prepaid after the Issue Date, shall be deemed to have been incurred pursuant to clause (1) of the preceding paragraph).
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space The Parent shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create, incur, issue, assume, guarantee Guarantee or otherwise become directly or indirectly liable, contingently or otherwise, liable with respect to (or, collectively, "“incur"”) any Indebtedness (including Acquired Debt), ) and Loral Space shall not issue any Disqualified Stock and the Parent shall not permit any of its Restricted Subsidiaries Subsidiary to issue any shares of Preferred Stockpreferred stock; provided, however, that Loral Space or any Restricted Subsidiary the Parent may incur Indebtedness (including Acquired Debt), and Loral Space may issue Disqualified Stock, and any permit a Restricted Subsidiary may issue Preferred Stock, if, after giving effect to the incurrence of such incur Indebtedness or issue preferred stock if at the issuance of such Disqualified Stock or Preferred Stock and the application of the proceeds thereof, no Loral Space Default would occur as a consequence time of such incurrence or issuance or be continuing following such incurrence or issuance and either after giving effect thereto (1) including a pro forma application of the Consolidated Leverage Ratio of Loral Space net proceeds therefrom), the leverage ratio would be less than 5.0 6.5 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of the most recent available quarterly or annual balance sheet is less than 2.0 to 1.0.
(b) Nothing contained in paragraph (a) of this Section 4.05 . The foregoing limitations shall prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):not apply to:
(1) the incurrence by Loral Space and its the Parent or any Restricted Subsidiaries Subsidiary of additional Indebtedness and letters of credit pursuant to under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Parent and the Restricted Subsidiaries thereunder) not to exceed $850 million as of such date of incurrence less the aggregate amount of all Net Proceeds of Asset Sales applied to repay term Indebtedness outstanding under one or more Credit Facilities pursuant to clause (1) of paragraph (b) of Section 4.143,260.0 million;
(2) the issuance of the Note Guarantees and the Parent Notes Guarantees on the date hereof;
(3) the incurrence by Loral Space the Parent and its the Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by Loral Space of Indebtedness represented by the Subordinated Notes and Loral Space's 9 1/2% Senior Subordinated Notes due 2006;
(4) the issuance by a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt); provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this clause (4)Notes and the Parent Notes on the date hereof;
(5) the incurrence by Loral Space or any of its the Parent and the Restricted Subsidiaries of Permitted Capital Lease Obligations, mortgage financings and/or additional Indebtedness constituting purchase money obligations, including all Refinancing Indebtedness in exchange forincurred with respect thereto, or up to an aggregate at any one time outstanding of the net proceeds greater of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness)that was permitted by this Guaranty to be incurred under paragraph i) $250.0 million and (aii) 5.0% of this Section 4.05 or clauses (2), (3) or this clause (5) Consolidated Total Assets as of this paragraph (b)any date of incurrence;
(6) the incurrence by Loral Space or any issuance of its Restricted Subsidiaries of intercompany Indebtedness or preferred stock between or among Loral Space and any of its Restricted Subsidiaries; provided, however, that:
(A) if Loral Space is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to all Obligations with respect to this Guaranty of the Subordinated Notes; and
(B) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space or a the Parent and the Restricted Subsidiary thereof Subsidiaries and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space or a the Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6)Subsidiaries;
(7) the incurrence by Loral Space or any of its the Parent and the Restricted Subsidiaries of Hedging Obligations that are incurred for in the purpose ordinary course of fixing or hedging interest rate risk or currency exchange rate riskbusiness;
(8) the incurrence by the Parent and the Restricted Subsidiaries of Indebtedness arising out of letters of credit, performance bonds, surety bonds and bankers’ acceptances incurred in the ordinary course of business;
(9) the incurrence by the Parent and the Restricted Subsidiaries of Indebtedness consisting of Guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock;
(10) the incurrence by the Parent or any Restricted Subsidiary 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;
(11) the Guarantee by the Company or any Guarantor of Indebtedness of the Parent or a Restricted Subsidiary and the Guarantee by any non-guarantor Subsidiary of Indebtedness of another non-guarantor Subsidiary, in each case, to the extent that the Guaranteed Indebtedness was permitted to be incurred by another provision of this Section 4.10; provided that if the Indebtedness being Guaranteed is contractually subordinated to the Notes or the Note Guarantees, as applicable, then the Guarantee must be subordinated to the same extent as the Indebtedness Guaranteed;
(12) the incurrence by the Parent and the Restricted Subsidiaries of Refinancing Indebtedness issued in exchange for, or the proceeds of which are used to repay, redeem, defease, extend, refinance, renew, replace or refund, Indebtedness (other than intercompany Indebtedness) referred to in clauses (2) through (5) above, this clause (12) or clause below or that was otherwise permitted to be incurred pursuant to the test set forth in the first paragraph of this Section 4.10; and
(13) the incurrence by the Parent or any Restricted Subsidiary of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (13), not to exceed $50.0 million. Notwithstanding the foregoing, Restricted Subsidiaries that are non-guarantor Subsidiaries (excluding the Company for this purpose) will not be permitted to incur Indebtedness or issue preferred stock pursuant to the first paragraph of this Section 4.10 or clause (13) above if, after giving effect to such incurrence or issuance, the aggregate principal amount of Indebtedness of such Restricted Subsidiaries that are non-guarantor Subsidiaries (excluding intercompany Indebtedness between or among the Parent and the Restricted Subsidiaries) outstanding pursuant to such first paragraph or such clause, together with the aggregate liquidation preference of preferred stock issued by such Restricted Subsidiaries that are non-guarantor Subsidiaries (excluding intercompany preferred stock issued between or among the Parent and the Restricted Subsidiaries) outstanding pursuant to such provisions, would exceed the greater of (x) $750.0 million and (y) 1.0x Adjusted EBITDA as of any date of incurrence. The Parent will not incur, and the Parent will not permit the Company or any Subsidiary Guarantor to incur, any Indebtedness that is contractually subordinated in right of payment to any other Indebtedness of the Parent, the Company or such Subsidiary Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Note Guarantee 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 Parent, the Company or a Subsidiary Guarantor solely by virtue of being unsecured or by virtue of being secured on a junior priority basis. For purposes of determining compliance with this Section 4.10, for the avoidance of doubt, in the event that an item of Indebtedness meets the criteria of more than one of the categories of permitted debt described in clauses (1) through (13) above, or is entitled to be incurred pursuant to the first paragraph of this Section 4.10, the Parent 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 Section 4.10. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued and authenticated under this Indenture will at all times be deemed to have been incurred on such date in reliance on the exception provided by clause (1) above. The accrual of interestinterest or preferred stock dividends, 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 preferred stock or Disqualified Stock or Preferred Stock in the form of additional shares of the same class of preferred stock or Disqualified Stock or Preferred Stock, as the case may be, will not be deemed to be an incurrence of Indebtedness or an issuance of preferred stock or Disqualified Stock or Preferred Stock for purposes of this Section 4.05;
(9) the incurrence by Loral Space or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (9), not to exceed $50 million; or
(10) the incurrence by Restricted Subsidiaries of Guarantees of Indebtedness of Loral Space or any Restricted Subsidiary that is not subordinated to the Guaranty of the Subordinated Notes.
(c) Loral Space shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of Loral Space unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty of the Subordinated Notes on substantially identical terms4.10; provided, howeverin each such case, that no Indebtedness the amount thereof is included in the Consolidated Interest Expense of Loral Space shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of Loral Space solely by virtue of being unsecured.
(d) the Parent as accrued. For purposes of determining compliance with this Section 4.05any U.S. Dollar-denominated restriction on the incurrence of Indebtedness, the U.S. Dollar-equivalent principal amount of Indebtedness denominated in a currency other than U.S. Dollars will be calculated based on the event relevant currency exchange rate in effect on the date such Indebtedness was incurred; provided that an item of proposed if such Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (10) of paragraph (b) of this Section 4.05is incurred to extend, replace, refund, refinance, renew or defease, or that is entitled exchanged for, other Indebtedness denominated in a currency other than U.S. Dollars, and such extension, replacement, refunding, refinancing, renewal, defeasance or exchange would cause the applicable U.S. Dollar-denominated restriction to be incurred pursuant to paragraph (a) of this Section 4.05, Loral Space shall be permitted to classify such item of Indebtedness exceeded if calculated at the relevant currency exchange rate in effect on the date of its incurrence in such extension, replacement, refunding, refinancing, renewal, defeasance or exchange, such U.S. Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed, defeased or exchanged. Notwithstanding any manner that complies with other provision of this Section 4.054.10, the maximum amount of Indebtedness that the Parent or any Restricted Subsidiary may incur pursuant to this Section 4.10 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:
(1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(3) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(i) the Fair Market Value of such assets at the date of determination; and
(ii) the amount of the Indebtedness of the other Person.
Appears in 1 contract
Sources: Senior Indenture (Iron Mountain Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee Guarantee or otherwise become directly or indirectly liable, contingently or otherwise, liable with respect to (collectively, "“incur"”) any Indebtedness (including Acquired Debt), ) and Loral Space shall not issue any Disqualified Stock and the Parent shall not permit any of its Restricted Subsidiaries to issue any shares of Preferred Stockpreferred stock; provided, however, that Loral Space or any Restricted Subsidiary the Parent may incur Indebtedness (including Acquired Debt), and Loral Space may issue Disqualified Stock, and any permit a Restricted Subsidiary may issue Preferred Stock, if, after giving effect to the incurrence of such incur Indebtedness or issue preferred stock if at the issuance of such Disqualified Stock or Preferred Stock and the application of the proceeds thereof, no Loral Space Default would occur as a consequence time of such incurrence or issuance or be continuing following such incurrence or issuance and either after giving effect thereto (1) including a pro forma application of the Consolidated Leverage Ratio of Loral Space net proceeds therefrom), the leverage ratio would be less than 5.0 6.5 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of the most recent available quarterly or annual balance sheet is less than 2.0 to 1.0.
(b) Nothing contained in paragraph (a) of this Section 4.05 . The foregoing limitations shall prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):not apply to:
(1) the incurrence by Loral Space and the Parent or any of its Restricted Subsidiaries of additional Indebtedness and letters of credit pursuant to under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Parent and its Restricted Subsidiaries thereunder) not to exceed $850 million as of such date of incurrence less the aggregate amount of all Net Proceeds of Asset Sales applied to repay term Indebtedness outstanding under one or more Credit Facilities pursuant to clause (1) of paragraph (b) of Section 4.142,000.0 million;
(2) the issuance of the Note Guarantees on the date hereof;
(3) the incurrence by Loral Space the Parent and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by Loral Space of Indebtedness represented by the Subordinated Notes and Loral Space's 9 1/2% Senior Subordinated Notes due 2006;
(4) the issuance by a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt); provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this clause (4)Notes on the date hereof;
(5) the incurrence by Loral Space or any of the Parent and its Restricted Subsidiaries of Permitted Capital Lease Obligations, mortgage financings and/or additional Indebtedness constituting purchase money obligations, including all Refinancing Indebtedness in exchange forincurred with respect thereto, or up to an aggregate at any one time outstanding of the net proceeds greater of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness)that was permitted by this Guaranty to be incurred under paragraph i) $250.0 million and (aii) 5.0% of this Section 4.05 or clauses (2), (3) or this clause (5) Consolidated Total Assets as of this paragraph (b)any date of incurrence;
(6) the incurrence by Loral Space or any issuance of Indebtedness or preferred stock between (i) the Parent and its Restricted Subsidiaries of intercompany Indebtedness between or among Loral Space and any of its Restricted Subsidiaries; provided, however, that:
(A) if Loral Space is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to all Obligations with respect to this Guaranty of the Subordinated Notes; and
(B) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space or a the Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6)Subsidiaries;
(7) the incurrence by Loral Space or any of the Parent and its Restricted Subsidiaries of Hedging Obligations that are incurred for in the purpose ordinary course of fixing or hedging interest rate risk or currency exchange rate riskbusiness;
(8) the accrual incurrence by the Parent and its Restricted Subsidiaries of interestIndebtedness arising out of letters of credit, the accretion or amortization of original issue discountperformance bonds, the payment of interest on any Indebtedness surety bonds and bankers’ acceptances incurred in the form ordinary course of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of the same class of Disqualified Stock or Preferred Stock, as the case may be, will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.05business;
(9) the incurrence by Loral Space the Parent and its Restricted Subsidiaries of Indebtedness consisting of Guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock;
(10) the incurrence by the Parent 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;
(11) the Guarantee by the Parent or any of the Subsidiary Guarantors of Indebtedness of the Parent or a Restricted Subsidiary of the Parent and the Guarantee by any non-Guarantor Subsidiary of Indebtedness of another non-Guarantor Subsidiary, in each case, to the extent that the Guaranteed Indebtedness was permitted to be incurred by another provision of this Section 4.10; provided that if the Indebtedness being Guaranteed is contractually subordinated to the Notes or the Note Guarantees, as applicable, then the Guarantee must be subordinated to the same extent as the Indebtedness Guaranteed;
(12) the incurrence by the Parent and its Restricted Subsidiaries of Refinancing Indebtedness issued in exchange for, or the proceeds of which are used to repay, redeem, defease, extend, refinance, renew, replace or refund, Indebtedness (other than intercompany Indebtedness) referred to in clauses (2) through (5) above, this clause (12) or clause (13) below or that was otherwise permitted to be incurred pursuant to the test set forth in the first paragraph of this Section 4.10; and
(13) the incurrence by the Parent or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted permitted Refinancing Indebtedness incurred to renew, refund, refinance refinance, replace, defease or replace discharge any Indebtedness incurred pursuant to this clause (913), not to exceed $50 50.0 million; or
. Notwithstanding the foregoing, Restricted Subsidiaries that are non-guarantor Subsidiaries will not be permitted to incur Indebtedness or issue preferred stock pursuant to the first paragraph of this Section 4.10 or clause (1013) above if, after giving effect to such incurrence or issuance, the incurrence aggregate principal amount of Indebtedness of Restricted Subsidiaries that are non-guarantor Subsidiaries (excluding intercompany Indebtedness between or among the Parent and its Restricted Subsidiaries) outstanding pursuant to such first paragraph or such clause, together with the aggregate liquidation preference of preferred stock issued by Restricted Subsidiaries that are non-guarantor Subsidiaries (excluding intercompany preferred stock issued between or among the Parent and its Restricted Subsidiaries) outstanding pursuant to such provisions, would exceed the greater of Guarantees (x) $750.0 million and (y) 1.0x Adjusted EBITDA as of Indebtedness any date of Loral Space incurrence. The Parent will not incur, and the Parent will not permit the Company or any Restricted Subsidiary that is not subordinated Guarantor to the Guaranty of the Subordinated Notes.
(c) Loral Space shall not incur incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of Loral Space the Parent, the Company or such Subsidiary Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty of Notes and the Subordinated Notes applicable Note Guarantee on substantially identical terms; provided, however, that no Indebtedness of Loral Space shall will be deemed to be contractually subordinated in right of payment to any other Indebtedness of Loral Space the Parent, the Company or a Subsidiary Guarantor solely by virtue of being unsecured.
(d) unsecured or by virtue of being secured on a junior priority basis. For purposes of determining compliance with this Section 4.054.10, for the avoidance of doubt, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt permitted debt described in clauses (1) through (1013) of paragraph (b) of this Section 4.05above, or is entitled to be incurred pursuant to the first paragraph (a) of this Section 4.054.10, Loral Space shall the Parent will be permitted to classify such item of Indebtedness on the date of its incurrence incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.054.10. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued and authenticated under this Indenture will at all times be deemed to have been incurred on such date in reliance on the exception provided by clause (1) above. The accrual of interest or preferred stock dividends, 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 preferred stock or Disqualified Stock in the form of additional shares of the same class of preferred stock or Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of preferred stock or Disqualified Stock for purposes of this Section 4.10; provided, in each such case, that the amount thereof is included in the Consolidated Interest Expense of the Parent as accrued. For purposes of determining compliance with any U.S. Dollar-denominated restriction on the incurrence of Indebtedness, the U.S. Dollar-equivalent principal amount of Indebtedness denominated in a currency other than U.S. Dollars will be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred; provided that if such Indebtedness is incurred to extend, replace, refund, refinance, renew or defease, or that is exchanged for, other Indebtedness denominated in a currency other than U.S. Dollars, and such extension, replacement, refunding, refinancing, renewal, defeasance or exchange 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 extension, replacement, refunding, refinancing, renewal, defeasance or exchange, such U.S. Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed, defeased or exchanged. Notwithstanding any other provision of this Section 4.10, the maximum amount of Indebtedness that the Parent or any of its Restricted Subsidiaries may incur pursuant to this Section 4.10 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:
(1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(3) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(i) the Fair Market Value of such assets at the date of determination; and
(ii) the amount of the Indebtedness of the other Person.
Appears in 1 contract
Sources: Senior Indenture (Iron Mountain Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space shall The Issuer will not, and shall will 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") incur any Indebtedness (including Acquired Debt), and Loral Space shall the Issuer will not issue any Disqualified Capital Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of Preferred Stock; provided, however, provided that Loral Space the Issuer or any Restricted Subsidiary may incur Indebtedness (including Acquired Debt), and Loral Space the Issuer may issue Disqualified Stock, Capital Stock and any a Restricted Subsidiary of the Issuer may issue Preferred Stock, if the Consolidated Fixed Charge Coverage Ratio is at least 2.0 to 1.0 (this proviso, the “Coverage Ratio Exception”); provided further that Restricted Subsidiaries that are not Guarantors may not incur Indebtedness under the Coverage Ratio Exception if, after giving pro forma effect to the such incurrence of such Indebtedness or the issuance of such Disqualified Stock or Preferred Stock and the (including pro forma application of the net proceeds thereoftherefrom), no Loral Space Default would occur as a consequence more than an aggregate, together with any Indebtedness of such incurrence or issuance or be continuing following such incurrence or issuance Restricted Subsidiaries that are not Subsidiary Guarantors incurred under clause (10) below and either any Permitted Refinancing Indebtedness hereof pursuant to clause (14) below, of the greater of (x) $50.0 million and (y) 7.50% of Consolidated Leverage Ratio Total Assets of Loral Space Indebtedness of Restricted Subsidiaries that are not Guarantors would be less than 5.0 outstanding pursuant to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of the most recent available quarterly or annual balance sheet is less than 2.0 to 1.0.
(b) Nothing contained in this paragraph (a) at such time. The first paragraph of this Section 4.05 shall 4.10 will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "“Permitted Debt"”):
(1) Indebtedness of the incurrence by Loral Space and Issuer or any of its Restricted Subsidiaries under the Credit Facilities (including the issuance and creation of additional Indebtedness and letters of credit pursuant to Credit Facilities and bankers’ acceptances thereunder) in an aggregate principal amount at any one time outstanding under this clause (1) not to exceed (i) the sum of (x) $850 250.0 million and (y) the greater of $75.0 million and 50.0% of Consolidated EBITDA (subject to the adjustments applicable to “Consolidated EBITDA” as provided for in the definition of “Consolidated Fixed Charge Coverage Ratio” as if on a pro forma basis) of the Issuer and its Restricted Subsidiaries for the most recently ended four fiscal quarters ending immediately prior to such date incurrence of incurrence Indebtedness for which financial statements have been made publicly available or otherwise delivered to Holders less (ii) the aggregate amount of all Net Proceeds of Asset Sales applied to repay term Indebtedness Obligations incurred and outstanding under one or more Credit Facilities pursuant to clause (1) of paragraph (b) of Section 4.14Qualified Receivables Transactions incurred by Receivables Entities;
(2) the incurrence by Loral Space (x) the Escrow Issuer on the Issue Date of Indebtedness represented by the Notes issued on the Issue Date and its Restricted Subsidiaries (y) the Company and the Guarantors (a) on the Issue Date of Indebtedness represented by the Notes issued on the Issue Date and the Subsidiary Guarantees thereof and (b) Existing Indebtedness;
(3) (a) Capital Lease Obligations, (b) Purchase Money Obligations and (c) industrial revenue bonds issued by or at the incurrence request of the Issuer or any Restricted Subsidiary, and Indebtedness funded by Loral Space such bonds, and Permitted Refinancing Indebtedness of Indebtedness represented by any of the Subordinated Notes foregoing, in an aggregate amount under this clause (3) not to exceed at any one time outstanding the greater of (x) $50.0 million and Loral Space's 9 1/2(y) 7.50% Senior Subordinated Notes due 2006of Consolidated Total Assets;
(4) the issuance by a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt); provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this clause (4);
(5) the incurrence by Loral Space or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refundrefinance, refinance or replace Indebtedness (other than intercompany Indebtedness)that was permitted by this Guaranty to be incurred under paragraph (a) of this Section 4.05 or clauses the Coverage Ratio Exception, clause (2), (310) or (15) of this paragraph or this clause (5) of this paragraph (b4);
(65) Indebtedness owed by the incurrence by Loral Space Issuer or any of its Restricted Subsidiaries of intercompany Indebtedness between to the Issuer or among Loral Space and any of its Restricted Subsidiaries; provided, however, provided that:
(Aa) if Loral Space the Issuer or any Guarantor is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to this Guaranty the Notes, in the case of the Subordinated NotesIssuer, or the Subsidiary Guarantee of such Guarantor, in the case of a Guarantor; and
(Bb) (ix) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space the Issuer or a Restricted Subsidiary thereof and (iiy) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space the Issuer or a Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space the Issuer or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (5);
(6)) Hedging Obligations, so long as the financial instrument or contract was not entered into for speculative purposes;
(7) obligations in the incurrence ordinary course of business in respect of workers’ compensation claims, self-insurance obligations, performance, surety, reclamation and similar bonds and completion bonds and bid guarantees with respect to the assets or business of the Issuer or any of its Restricted Subsidiaries;
(8) (x) the Guarantee by Loral Space the Issuer or any Guarantor of Indebtedness of the Issuer or a Guarantor and (y) the guarantee by any Restricted Subsidiary that is not a Guarantor of Indebtedness of any other Restricted Subsidiary that is not a Guarantor; provided that, in each case, the Indebtedness being guaranteed is permitted to be incurred by another provision of this Indenture;
(9) indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business or assets of the Issuer or any of its Restricted Subsidiaries or Capital Stock of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk or currency exchange rate risk;
(8) 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, and the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of the same class of Disqualified Stock or Preferred Stock, as the case may be, will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.05;
(9) the incurrence by Loral Space or any of its Restricted Subsidiaries; provided that the maximum aggregate liability in respect of all of such obligations outstanding under this clause (9) shall at no time exceed the gross proceeds including non-cash proceeds (the Fair Market Value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Issuer and its Restricted Subsidiaries in connection with such dispositions;
(10) Indebtedness of additional Indebtedness in the Issuer or any Restricted Subsidiary of the Issuer (including Acquired Debt and earnouts) incurred to finance an aggregate principal amount (acquisition, merger, consolidation or accreted value, as applicable) at any time outstandingamalgamation, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance refinance, replace, defease or replace discharge any Indebtedness incurred pursuant to this clause (910); provided that on the date of such acquisition, merger, consolidation or amalgamation after giving pro forma effect thereto as if the same had occurred at the beginning of the applicable four-quarter period, the Issuer would either (A) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth in the first paragraph of this Section 4.10; or (B) have a Consolidated Fixed Charge Coverage Ratio of not less than the Consolidated Fixed Charge Coverage Ratio of the Issuer immediately prior to exceed $50 millionsuch acquisition, merger, consolidation or amalgamation; or
provided further that the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not Guarantors incurred under this clause (10) and outstanding at the incurrence by time of incurrence, together with any Indebtedness of Restricted Subsidiaries that are not Guarantors incurred pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth in the first paragraph of Guarantees this covenant and any Permitted Refinancing Indebtedness in respect hereof and thereof incurred under clause (4), shall not exceed the greater of (x) $50.0 million and (y) 7.50% of Consolidated Total Assets;
(11) Indebtedness arising from the honoring by a bank or other financial institution of Loral Space a check, draft or similar instrument drawn against insufficient funds; provided that such Indebtedness is extinguished within five business days of incurrence;
(12) (x) unsecured Indebtedness in respect of obligations of the Issuer or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that is such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not subordinated in connection with the borrowing of money; (y) Indebtedness in respect of intercompany obligations of the Issuer or any Restricted Subsidiary in respect of accounts payable incurred in connection with goods sold or services rendered in the ordinary course of business and not in connection with the borrowing of money to the Guaranty extent otherwise permitted hereunder; and (z) Indebtedness arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, in each case entered into in connection with the disposition of any business, assets or Equity Interests in accordance with the requirements of this Indenture;
(13) Indebtedness of the Subordinated Notes.
Issuer or any Restricted Subsidiary in respect of (a) letters of credit, bankers’ acceptances or other similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business, (b) the financing of insurance premiums in the ordinary course of business or (c) Loral Space shall Bank Products Obligations;
(14) additional Indebtedness in an aggregate amount under this clause (14) not incur to exceed at any time outstanding the greater of (x) $70.0 million and (y) 10% of Consolidated Total Assets;
(15) Indebtedness or Disqualified Stock of the Issuer or any Restricted Subsidiary and Preferred Stock of any Restricted Subsidiary in an aggregate principal amount or liquidation preference outstanding at the time of Incurrence, together with Permitted Refinancing Indebtedness in respect thereof, not greater than an amount equal to 100.0% of the amount of net cash proceeds received by the Issuer and its Restricted Subsidiaries since immediately after the Issue Date from the issue or sale of Equity Interests of the Issuer or any Parent Entity (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of Loral Space unless such Indebtedness is also contractually subordinated in right of payment which proceeds are contributed to the Loral Space Guaranty Issuer or any Restricted Subsidiary) or cash contributed to the capital of the Subordinated Notes on substantially identical terms; providedIssuer (in each case other than proceeds of contributions in connection with sales of Disqualified Stock or sales of Equity Interests to, howeveror contributions received from, that no Indebtedness the Issuer or any of Loral Space shall be deemed its Subsidiaries) to be contractually subordinated in right of payment the extent such net cash proceeds or cash have not been applied to any other Indebtedness of Loral Space solely by virtue of being unsecured.
(d) For purposes of determining compliance with this Section 4.05, in increase the event that an item of proposed Indebtedness meets the criteria of more than one calculation of the categories of Basket or otherwise applied to make Restricted Payments or Permitted Debt described in clauses (1) through (10) of paragraph (b) of this Section 4.05, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.05, Loral Space shall be permitted to classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.05.Investments;
Appears in 1 contract
Sources: Indenture (PGT Innovations, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space shall PES will not, and shall will 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"”) any Indebtedness (including Acquired Debt), and Loral Space shall PES will not issue any Disqualified Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of Preferred Stock; provided, however, that Loral Space or any Restricted Subsidiary may incur Indebtedness (including Acquired Debt), and Loral Space may issue Disqualified Stock, and any Restricted Subsidiary may issue Preferred Stock, if, after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or Preferred Stock and the application shares of the proceeds thereof, no Loral Space Default would occur as a consequence of such incurrence or issuance or be continuing following such incurrence or issuance and either (1) the Consolidated Leverage Ratio of Loral Space would be less than 5.0 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of the most recent available quarterly or annual balance sheet is less than 2.0 to 1.0preferred stock.
(b) Nothing contained in paragraph (aThe provisions of Section 4.09(a) of this Section 4.05 shall hereof will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "“Permitted Debt"”):
(1) the incurrence by Loral Space PES and its Restricted Subsidiaries of additional Indebtedness and letters of credit pursuant to under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (1) (with letters of credit under Credit Facilities being deemed to have a principal amount equal to the maximum potential liability of PES and its Restricted Subsidiaries thereunder) not to exceed $850 million as of such date of incurrence 15.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by PES or any of its Restricted Subsidiaries since the Issue Date to repay any term Indebtedness outstanding under one or more a Credit Facilities pursuant to Facility classified under this clause (1) of paragraph (b) of or to repay any revolving credit Indebtedness under such Credit Facility and effect a corresponding commitment reduction thereunder pursuant to Section 4.144.10;
(2) the incurrence by Loral Space PES and its Restricted Subsidiaries the Guarantors of Indebtedness represented by the Existing IndebtednessNotes and the related Note Guarantees to be issued on the Issue Date and the exchange of Notes and the related Note Guarantees to be issued pursuant to the Registration Rights Agreement (other than any Additional Notes);
(3) the incurrence by Loral Space PES and its Restricted Subsidiaries of the Existing Indebtedness represented by (other than the Subordinated Notes Indebtedness described in clauses (1) and Loral Space's 9 1/2% Senior Subordinated Notes due 2006(2));
(4) the issuance by a Subsidiary of Preferred Stock or the incurrence by Loral Space's PES or any of its Restricted Subsidiaries of Non-Recourse Debt 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 (real or personal), plant or equipment used in the business of PES or any of its Restricted Subsidiaries, in an aggregate principal amount, including Acquired Debt that constitutes Non-Recourse Debt); providedall Permitted Refinancing Indebtedness incurred to renew, howeverrefund, that if refinance, replace, defease or discharge any such Indebtedness ceases incurred pursuant to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this clause (4), not to exceed $5.0 million at any time outstanding;
(5) the incurrence by Loral Space PES or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance refinance, replace, defease or replace discharge any Indebtedness (other than intercompany Indebtedness)that Indebtedness) that was permitted by this Guaranty Indenture to be incurred under paragraph (a) of this Section 4.05 or clauses (24.09(b)(2),(3), (3) or this clause 4), (5) of this paragraph or (b7);
(6) the incurrence by Loral Space PES or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Loral Space PES and any of its Restricted Subsidiaries; provided, however, that:
(Aa) if Loral Space PES or any Guarantor is the obligor on such IndebtednessIndebtedness and the payee is not PES or a Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to this Guaranty the Notes, in the case of PES, or the Subordinated NotesNote Guarantee, in the case of a Guarantor; and
(Bb) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space PES or a Restricted Subsidiary thereof of PES and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space PES or a Restricted Subsidiary thereof shall of PES will be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space PES or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);
(7) on or after September 1, 2011, the incurrence by Loral Space PES or any of its Restricted Subsidiaries of Indebtedness not to exceed $35 million in aggregate principal amount; provided that such Indebtedness is used by PES or any of its Restricted Subsidiaries solely for the purpose of acquiring equipment;
(8) the incurrence by PES or any of its Restricted Subsidiaries of Hedging Obligations that are incurred (excluding Hedging Obligations entered into for speculative purposes) in the ordinary course of business solely for the purpose of fixing or hedging limiting:
(a) interest rate risk or currency exchange rate riskwith respect to any Indebtedness permitted to be incurred pursuant to this Section 4.09;
(8) b) exchange rate risk with respect to any currency exchange;
(c) commodity risk; or
(d) any combination of the foregoing;
(a) the Guarantee by PES or any of the Guarantors of Indebtedness of a Restricted Subsidiary of PES so long as the incurrence of such Indebtedness incurred by such Restricted Subsidiary is permitted under the terms of this Indenture; or
(b) the Guarantee by a Restricted Subsidiary of PES of Indebtedness of PES or another Restricted Subsidiary so long as the incurrence of such Indebtedness incurred by such Restricted Subsidiary is permitted under the terms of this Indenture; provided, in each case, that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the Note Guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(10) the incurrence by PES or any of its Restricted Subsidiaries of Indebtedness in respect of workers’ compensation, general liability or truckers’ liability claims, payment obligations in connection with health or other types of social security benefits, unemployment or other insurance or self-insurance obligations, insurance premium finance agreements, statutory obligations, bankers’ acceptances and performance, appeal or surety bonds in the ordinary course of business;
(11) the incurrence by PES 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; and
(12) the incurrence of Indebtedness consisting of indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary in accordance with the terms of this Indenture, other than Indebtedness or guarantees of Indebtedness incurred or assumed by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition.
(c) For purposes of determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (12) above, PES 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 Section 4.09. 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 or Preferred Stock in the form of additional shares of the same class of Disqualified Stock or Preferred Stock, as the case may be, will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.05;
4.09; provided, in each such case, that the amount of any such accrual, accretion or payment (9without duplication) is included in Fixed Charges of PES as accrued. Notwithstanding any other provision of this Section 4.09, the incurrence by Loral Space or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal maximum amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (9), not to exceed $50 million; or
(10) the incurrence by Restricted Subsidiaries of Guarantees of Indebtedness of Loral Space that PES or any Restricted Subsidiary that is may incur pursuant to this Section 4.09 shall not subordinated be deemed to the Guaranty be exceeded solely as a result of the Subordinated Notesfluctuations in exchange rates or currency values.
(cd) Loral Space shall The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(3) 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.
(e) PES will not incur 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 Loral Space PES or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty of Notes and the Subordinated Notes applicable Note Guarantee on substantially identical terms; provided, however, that no Indebtedness of Loral Space shall will be deemed to be contractually subordinated in right of payment to any other Indebtedness of Loral Space PES solely by virtue of being unsecuredunsecured or by virtue of being secured on a first or junior Lien basis.
(d) For purposes of determining compliance with this Section 4.05, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (10) of paragraph (b) of this Section 4.05, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.05, Loral Space shall be permitted to classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.05.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space The SPV Parties 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") any Indebtedness other than the following (including Acquired and Delta shall not, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to any Indebtedness with respect to any Pre-paid Miles Purchase other than as set forth in clause (b) below):
(a) Junior Lien Debt); provided that (i) prior to the incurrence of such Junior Lien Debt, the Rating Agency Condition shall have been satisfied, (ii) no Event of Default or Early Amortization Event shall have occurred and Loral Space shall not issue any Disqualified Stock and shall not permit any be continuing or would result from the issuance of its Restricted Subsidiaries such Junior Lien Debt, (iii) to issue any shares of Preferred Stock; provided, however, the extent that Loral Space or any Restricted Subsidiary may incur Indebtedness (including Acquired Debt), and Loral Space may issue Disqualified Stock, and any Restricted Subsidiary may issue Preferred Stock, if, immediately after giving effect to the incurrence issuance of such Junior Lien Debt the aggregate outstanding amount of Junior Lien Debt would exceed $1.0 billion, the ratio of (A) (I) the aggregate outstanding amount of Junior Lien Debt (including such Junior Lien Debt being then issued) plus (II) the greater of (x) the then-outstanding principal amount of Priority Lien Debt and (y) the Priority Lien Cap divided by (B) the sum of (x) the aggregate amount of Transaction Revenue received during the period of four consecutive Quarterly Reporting Periods ending on the most recent Determination Date, and (y) Cure Amounts transferred to the Collection Account pursuant to Section 4.33 in connection with such Determination Date shall not exceed 1.60 to 1.00 on a pro forma basis and (iv) such Junior Lien Debt shall not be incurred by or subject to a guarantee by any Subsidiary of Delta other than any SPV Party;
(b) Pre-paid Miles Purchases, so long as (i) the aggregate amount of Miles purchased in Pre-paid Miles Purchases or other Indebtedness incurred with respect to Pre-paid Miles Purchases does not exceed an amount equal to the quotient of (x) $550.0 million divided by (y) the rate by which such Person purchases Miles from Delta as in effect on the Closing Date, (ii) such sale is non-refundable and non-recourse to the SPV Parties, (iii) the Indebtedness related thereto is unsecured or secured by assets of Delta or its subsidiaries (other than the SPV Parties) that do not constitute Collateral and (iv) no Early Amortization Period or Event of Default is continuing at the time of such sale or would result therefrom;
(c) Indebtedness represented by (1) the Notes issued and outstanding as of the Closing Date, and the Note Guarantees related thereto, (2) the Term Loans outstanding on the Closing Date, and the related Guarantees by the Guarantors thereof, and (3) additional Indebtedness incurred under the Credit Agreement, the Indenture or another indenture; provided that (i) any such Indebtedness (other than with respect to Section 4.23(c)(A) and (B), customary bridge loans which, subject only to customary conditions (which shall be limited to no payment or bankruptcy event of default) would either automatically be converted into or required to be exchanged for long-term refinancing in the form of debt securities issued under an indenture or incremental term loans under the Credit Agreement, as applicable, permitted under (and subject to the requirements of) Section 4.23(c)(A) and (B) and each other provision of this Section 4.23(c)), (A) shall have a maturity date not earlier than the Latest Maturity Date then in effect, (B) shall have a Weighted Average Life to Maturity thereof no shorter than the remaining Weighted Average Life to Maturity of the Notes outstanding (in the case of additional Notes to be issued under this Indenture or debt securities to be issued under an indenture) or the Credit Agreement (in the case of Indebtedness to be incurred under the Credit Agreement), and (C) shall not be subject to or benefit from any Guarantee by any Person other than an Issuer or Guarantor, (ii) after giving effect to the issuance of such Disqualified Stock or Preferred Stock and Indebtedness, the application outstanding principal amount of the proceeds thereofPriority Lien Debt shall not exceed the Priority Lien Cap (plus, no Loral Space Default would occur as a consequence fees, expenses, premium and accrued interest in respect of such incurrence or issuance or be continuing following such incurrence or issuance and either (1) the Consolidated Leverage Ratio of Loral Space would be less than 5.0 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of the most recent available quarterly or annual balance sheet is less than 2.0 to 1.0.
(b) Nothing contained in paragraph (a) of this Section 4.05 shall prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(1) the incurrence by Loral Space and its Restricted Subsidiaries of additional Indebtedness and letters of credit pursuant to Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (1) not to exceed $850 million as of such date of incurrence less the aggregate amount of all Net Proceeds of Asset Sales applied to repay term Indebtedness outstanding under one or more Credit Facilities pursuant to clause (1) of paragraph (b) of Section 4.14;
(2) the incurrence by Loral Space and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by Loral Space of Indebtedness represented by the Subordinated Notes and Loral Space's 9 1/2% Senior Subordinated Notes due 2006;
(4) the issuance by a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt); provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this clause (4);
(5) the incurrence by Loral Space or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness)that was permitted by this Guaranty to be incurred under paragraph (a) of this Section 4.05 or clauses (2), (3) or this clause (5) of this paragraph (b);
(6) the incurrence by Loral Space or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Loral Space and any of its Restricted Subsidiaries; provided, however, that:
(A) if Loral Space is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to all Obligations with respect to this Guaranty of the Subordinated Notes; and
(B) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space or a Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);
(7) the incurrence by Loral Space or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk or currency exchange rate risk;
(8) 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, and the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of the same class of Disqualified Stock or Preferred Stock, as the case may be, will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.05;
(9) the incurrence by Loral Space or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (9), not to exceed $50 million; or
(10Section 4.23(c) the incurrence by Restricted Subsidiaries of Guarantees of Indebtedness of Loral Space or any Restricted Subsidiary that is not subordinated to the Guaranty of the Subordinated Notes.
(c) Loral Space shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any which refinances other Indebtedness of Loral Space unless Loyalty Co permitted under this Indenture), (iii) prior to the issuance of any additional Indebtedness after the initial issuance on the Closing Date, the Rating Agency Condition shall have been satisfied, and (iv) in the case of the issuance of any additional Indebtedness issued in a Capital Markets Offering after the initial issuance of the Notes, the terms and conditions governing such Indebtedness is also contractually subordinated in right of payment shall be substantially similar to, or (taken as a whole) no more favorable (as reasonably determined by Loyalty Co) to the Loral Space Guaranty investors or holders providing such Indebtedness than those applicable to the Notes under this Indenture (except to the extent such terms are (I) conformed (or added) in the Notes Documents for the benefit of the Subordinated Holders of the Notes pursuant to a supplemental indenture or (II) applicable solely to periods after the latest final maturity date of the Notes existing at the time of such incurrence); provided that notwithstanding the foregoing, in no event shall such Indebtedness be subject to events of default resulting (either directly or through a cross-default or cross-acceleration provision) from the occurrence of any event described in the definition of “Parent Bankruptcy Event” (or the occurrence of any such event with respect to any Subsidiary of Delta other than any SPV Party) except on substantially identical terms; providedthe same terms as the Notes, however(v) no Event of Default or Early Amortization Event shall have occurred and be continuing or would result from the issuance of such Indebtedness and (vi) other than in the case of Indebtedness incurred on the Closing Date, that no the pro forma Peak Debt Service Coverage Ratio (calculated using the Maximum Quarterly Debt Service of the then existing Term Loans, the Notes and other Indebtedness previously incurred pursuant to this Section 4.23(c)) as of Loral Space the immediately preceding Determination Date, immediately after giving effect to the issuance of such Indebtedness shall be deemed more than (i) for any date of determination prior to be contractually subordinated the Determination Date occurring in right July 2022, 1.50 to 1:00, (ii) for any date of payment determination during the period beginning on or after the Determination Date occurring in July 2022 but excluding the Determination Date occurring in January 2023, 1.75 to 1:00 and (iii) for any other Indebtedness date of Loral Space solely by virtue of being unsecured.determination occurring on or after the Determination Date in January 2023, 2.25 to 1:00;
(d) For purposes of determining compliance with this Section 4.05, in Indebtedness arising from customary indemnification or other similar obligations under the event that an item of proposed Indebtedness meets Notes Documents and the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (10) of paragraph (b) of this Section 4.05, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.05, Loral Space shall be permitted to classify such item of Indebtedness other agreements entered into on the date of its incurrence Closing Date in any manner that complies with connection therewith (or replacements or amendments thereto which are permitted under this Indenture); and
(e) Indebtedness otherwise permitted under Section 4.054.25.
Appears in 1 contract
Sources: Indenture (Delta Air Lines, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space shall The Issuer will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, incur, 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 Loral Space shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of Preferred StockIndebtedness; provided, however, provided that Loral Space the Issuer or any Restricted Subsidiary may incur Indebtedness (including Acquired Debt), and Loral Space may issue Disqualified Stock, and any Restricted Subsidiary may issue Preferred Stock, if, immediately after giving effect to such incurrence, the incurrence Consolidated Coverage Ratio is at least 2.0 to 1.0 (determined on a pro forma basis, including a pro forma application of such the net proceeds therefrom, as if the additional Indebtedness or the issuance of such Disqualified Stock or Preferred Stock had been incurred, and the application of the proceeds thereoftherefrom had occurred, no Loral Space Default would occur as a consequence of such incurrence or issuance or be continuing following such incurrence or issuance and either (1) at the Consolidated Leverage Ratio of Loral Space would be less than 5.0 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as beginning of the most recent available quarterly applicable four-quarter period), so long as the aggregate Indebtedness incurred pursuant to this proviso by Restricted Subsidiaries that are not Subsidiary Guarantors (other than Indebtedness owed by the Issuer or annual balance sheet is less than 2.0 any Restricted Subsidiary to 1.0the Issuer or any Restricted Subsidiary on terms set forth in clause (5) of the definition of Permitted Indebtedness) does not exceed $75.0 million at any one time outstanding (this proviso, the “Coverage Ratio Exception”).
(b) Nothing contained in paragraph (aSection 4.09(a) of this Section 4.05 shall will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "“Permitted Debt"Indebtedness”):
(1) the incurrence by Loral Space Notes issued on the Issue Date and its any related Guarantees;
(2) Indebtedness of the Issuer or any Restricted Subsidiaries Subsidiary to the extent outstanding on the Issue Date (other than Indebtedness under Credit Facilities);
(3) Indebtedness of additional Indebtedness and letters of credit pursuant to the Issuer or any Restricted Subsidiary under Credit Facilities in an aggregate principal amount at any one time outstanding under pursuant to this clause (3) (after giving effect to the application of any proceeds of such Indebtedness as of the date of the incurrence thereof), taken together with the aggregate amount outstanding at such time pursuant to clause (19) below, not to exceed the greater of (i) $700.0 million; and (ii) the sum of (x) $100.0 million, (y) 65% of the net book value of the Inventory of the Issuer and the Restricted Subsidiaries and (z) 85% of the net book value of the accounts receivable of the Issuer and the Restricted Subsidiaries, in each case determined on a consolidated basis in accordance with GAAP on a pro forma basis after giving effect to any transactions consummated in connection with the incurrence of such Indebtedness;
(4) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to the Coverage Ratio Exception, clause (1) of this Section 4.09(b), clause (2) of this Section 4.09(b) (other than any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries), this clause (4), or clause (16) of this Section 4.09(b);
(5) Indebtedness owed by the Issuer or any Restricted Subsidiary to the Issuer or any Restricted Subsidiary; provided that (i) any such Indebtedness owed by the Issuer shall be subordinated by its terms to the prior payment in full in cash of all Obligations with respect to the Notes, and any such Indebtedness owed by any Subsidiary Guarantor shall be subordinated by its terms to the prior payment in full in cash of all Obligations with respect to the Guarantee of such Subsidiary Guarantor; and (ii) if such Indebtedness becomes held by a Person other than the Issuer or any Restricted Subsidiary, the Issuer or such Restricted Subsidiary shall be deemed to have incurred Indebtedness not permitted by this clause (5);
(6) (x) the guarantee by the Issuer or any Subsidiary Guarantor of Indebtedness of the Issuer or a Subsidiary Guarantor and (y) the guarantee by any Restricted Subsidiary that is not a Subsidiary Guarantor of Indebtedness of any other Restricted Subsidiary that is not a Subsidiary Guarantor; provided that, in each case, the Indebtedness being guaranteed is incurred pursuant to the Coverage Ratio Exception or is Permitted Indebtedness;
(7) Hedging Obligations;
(8) Purchase Money Indebtedness and Capital Lease Obligations of the Issuer or any Subsidiary Guarantor incurred to finance the acquisition, construction or improvement of any assets (including capital expenditures of the Issuer or any Subsidiary Guarantor) incurred within 180 days of such acquisition, construction or improvement, and Refinancings thereof, in an aggregate amount at any time outstanding pursuant to this clause (8) not to exceed the greater of (A) $35.0 million and (B) 3.5% of Total Assets;
(9) Indebtedness of any Subsidiary that is not a Subsidiary Guarantor in an aggregate amount at any time outstanding pursuant to this clause (9) (after giving effect to the application of any net proceeds of such Indebtedness as of the date of the incurrence thereof) not to exceed $850 million as of such date of incurrence less the aggregate amount of all Net Proceeds of Asset Sales applied to repay term Indebtedness outstanding under one or more Credit Facilities pursuant to clause (1) of paragraph (b) of Section 4.1475.0 million;
(210) the incurrence by Loral Space and its Restricted Subsidiaries Indebtedness of the Existing IndebtednessIssuer or any Restricted Subsidiary represented by standby, trade or documentary letters of credit or letters of credit issued to provide security for workers’ compensation claims or other statutory or regulatory obligations or for payment obligations in connection with self-insurance or similar requirements of the Issuer or any Restricted Subsidiary, in each case to the extent incurred in the ordinary course of business of the Issuer or such Restricted Subsidiary;
(311) customary indemnification, adjustment of purchase price or similar obligations, in each case, incurred in connection with the incurrence by Loral Space acquisition or disposition of any assets or Capital Stock of the Issuer or any Restricted Subsidiary (other than guarantees of Indebtedness represented incurred by any Person acquiring all or any portion of such assets for the Subordinated Notes and Loral Space's 9 1/2% Senior Subordinated Notes due 2006purpose of financing such acquisition);
(412) obligations in respect of performance bonds and completion, guarantee, surety and similar bonds in the ordinary course of business;
(13) Indebtedness in respect of Treasury Services Agreements (including Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds); provided that such Indebtedness is extinguished within five business days of incurrence;
(14) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(15) Indebtedness consisting of take-or-pay obligations contained in supply agreements relating to products, services or commodities of a type that the Issuer or any of its Subsidiaries uses or sells in the ordinary course of business;
(16) Acquired Indebtedness; provided that after giving effect to such acquisition or merger, either (i) the issuance by a Subsidiary Issuer would be permitted to incur at least $1.00 of Preferred Stock additional Indebtedness pursuant to the Coverage Ratio Exception; or (ii) the incurrence by Loral Space's Consolidated Coverage Ratio of the Issuer and the Restricted Subsidiaries is equal to or greater than immediately prior to such acquisition or merger;
(17) Indebtedness consisting of the financing of insurance premiums;
(18) Indebtedness consisting of Guarantees incurred in the ordinary course of business under repurchase agreements or similar agreements in connection with the financing of sales of goods in the ordinary course of business;
(19) Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt)Securitization Entity Indebtedness incurred by a Securitization Entity in connection with a Qualified Securitization Transaction; provided, however, that if at the time of such incurrence, the Issuer or any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this the Issuer would have been able to incur the same amount of Indebtedness pursuant to clause (4);
(5) the incurrence by Loral Space or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness)that was permitted by this Guaranty to be incurred under paragraph (a3) of this Section 4.05 or clauses (24.09(b), (3) or this clause (5) of this paragraph (b);
(6) the incurrence by Loral Space or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Loral Space and any of its Restricted Subsidiaries; provided, however, that:
(A) if Loral Space is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to all Obligations with respect to this Guaranty of the Subordinated Notes; and
(B20) (i) additional Indebtedness of the Issuer or any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space or a Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);
(7) the incurrence by Loral Space or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk or currency exchange rate risk;
(8) 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, and the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of the same class of Disqualified Stock or Preferred Stock, as the case may be, will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.05;
(9) the incurrence by Loral Space or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount not to exceed $100.0 million;
(21) Indebtedness in respect of surety bonds, performance bonds, bid bonds, or accreted value, as applicablesimilar obligations arising in the ordinary course of business up to an amount reasonably determined to be payable under all surety bonds then outstanding; and
(22) Indebtedness of any Foreign Subsidiary in an aggregate amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred outstanding pursuant to this clause (9), 22) (after giving effect to the application of any net proceeds of such Indebtedness as of the date of the incurrence thereof) not to exceed the greater of (A) $50 million; or
30.0 million and (10B) the incurrence by Restricted Subsidiaries sum of Guarantees of Indebtedness of Loral Space or any Restricted Subsidiary that is not subordinated to the Guaranty (i) 60% of the Subordinated Notesbook value of the inventory of the Foreign Subsidiaries and (ii) 80% of the book value of the accounts receivable of the Foreign Subsidiaries (as determined on a pro forma basis after giving effect to any transactions consummated in connection with the incurrence of such Indebtedness).
(c) Loral Space shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of Loral Space unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty of the Subordinated Notes on substantially identical terms; provided, however, that no Indebtedness of Loral Space shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of Loral Space solely by virtue of being unsecured.
(d) For purposes of determining compliance with this Section 4.054.09, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt Indebtedness described in clauses (1) through (1022) of paragraph (bSection 4.09(b) of this Section 4.05, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.05the Coverage Ratio Exception, Loral Space shall be permitted to the Issuer may, in its sole discretion, classify such item of Indebtedness and may divide and classify such Indebtedness in more than one of the types of Indebtedness described and may later reclassify such item into any one or more of the categories of Indebtedness described above (provided that at the time of reclassification it meets the criteria in such category or categories); provided, however, that Indebtedness outstanding under the Credit Agreement on the date Issue Date shall be deemed to have been incurred under clause (3) of its Section 4.09(b). The maximum amount of Indebtedness that the Issuer or any Restricted Subsidiary may incur pursuant to this Section 4.09 will not be deemed to be exceeded solely as the result of fluctuations in the exchange rates of currencies. In determining the amount of Indebtedness outstanding under one of the clauses above, the outstanding principal amount of any particular Indebtedness of any Person shall be counted only once and any obligation of such Person or any other Person arising under any guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness shall be disregarded so long as it is permitted to be incurred by the Person or Persons incurring such obligation. Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, of the same class will not be deemed to be an incurrence of Indebtedness, Disqualified Stock or Preferred Stock; provided, in each such case, that the amount thereof is included in Consolidated Fixed Charges of the Issuer as accrued. For purposes of determining compliance with, and the outstanding principal amount of any manner that complies particular Indebtedness incurred pursuant to and in compliance with this Section 4.054.09, any other obligation of the obligor on such Indebtedness (or of any other Person who could have incurred such Indebtedness under this Section 4.09) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness.
(d) Notwithstanding the foregoing, the Issuer will not, and will not permit any Subsidiary Guarantor to, incur any Indebtedness that purports to be by its terms (or by the terms of any agreement or instrument governing such Indebtedness) subordinated in right of payment to any other Indebtedness of the Issuer or of such other Subsidiary Guarantor, as the case may be, unless such Indebtedness is also by its terms made subordinated in right of payment to the Notes or the Guarantee of such Subsidiary Guarantor, as applicable, to at least the same extent as such Indebtedness is subordinated in right of payment to such other Indebtedness of the Issuer or such Subsidiary Guarantor, as the case may be.
Appears in 1 contract
Sources: Indenture (Koppers Holdings Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. Notwithstanding anything contained in this Section 4.10, prior to the Release Date, the Issuer will not, directly or indirectly, incur any Indebtedness. On and after the Release Date, (ai) Loral Space shall the Issuer will not, and shall will 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") incur any Indebtedness (including Acquired Debt), and Loral Space shall (ii) the Issuer will not issue any Disqualified Capital Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of Preferred Stock; provided, however, provided that Loral Space the Issuer or any Restricted Subsidiary may incur Indebtedness (including Acquired Debt), and Loral Space the Issuer may issue Disqualified Stock, Capital Stock and any a Restricted Subsidiary of the Issuer may issue Preferred Stock, if the Consolidated Fixed Charge Coverage Ratio is at least 2.0 to 1.0 (this proviso, the “Coverage Ratio Exception”); provided further that Restricted Subsidiaries that are not Guarantors may not incur Indebtedness under the Coverage Ratio Exception if, after giving pro forma effect to the such incurrence of such Indebtedness or the issuance of such Disqualified Stock or Preferred Stock and the (including pro forma application of the net proceeds thereoftherefrom), no Loral Space Default would occur as a consequence more than an aggregate of such incurrence or issuance or be continuing following such incurrence or issuance and either (1) the Consolidated Leverage Ratio $75.0 million of Loral Space Indebtedness of Restricted Subsidiaries that are not Guarantors would be less than 5.0 outstanding pursuant to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of the most recent available quarterly or annual balance sheet is less than 2.0 to 1.0.
(b) Nothing contained in this paragraph (a) at such time. The first paragraph of this Section 4.05 shall 4.10 will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "“Permitted Debt"”):
(1) the incurrence by Loral Space and its Restricted Subsidiaries of additional Indebtedness and letters of credit pursuant to by the Issuer or any of its Restricted Subsidiaries under the Senior Secured Credit Facilities (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Issuer and its Restricted Subsidiaries thereunder) in an aggregate principal amount at any one time outstanding under this clause (1) not to exceed $850 million as of such date of incurrence 2,250.0 million, less (i) the aggregate amount of all Net Proceeds of Asset Sales applied by the Issuer or any of its Subsidiaries since the date of this Indenture to repay term Indebtedness outstanding under one or more the Senior Secured Credit Facilities pursuant to clause (1) of the third paragraph (b) of Section 4.144.13 and (ii) the aggregate amount incurred and outstanding under a Qualified Receivables Financing incurred by a Receivables Subsidiary;
(2) the incurrence by Loral Space Notes issued on the Issue Date and its Restricted Subsidiaries of the Existing IndebtednessSubsidiary Guarantees thereof, and any Exchange Notes relating thereto and the Subsidiary Guarantees thereof;
(3) (a) Capital Lease Obligations, (b) Purchase Money Obligations and (c) industrial revenue bonds issued by or at the incurrence request of the Issuer or any Restricted Subsidiary, and Indebtedness funded by Loral Space such bonds, and Permitted Refinancing Indebtedness of Indebtedness represented by any of the Subordinated Notes and Loral Space's 9 1/2% Senior Subordinated Notes due 2006foregoing, in an aggregate amount under this clause (3) not to exceed $50.0 million at any one time outstanding;
(4) the issuance by a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt); provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this clause (4);
(5) the incurrence by Loral Space or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refundrefinance, refinance (x) Existing Indebtedness or replace (y) Indebtedness (other than intercompany Indebtedness)that was permitted by this Guaranty to be incurred under paragraph the Coverage Ratio Exception, clause (a2) of this Section 4.05 or clauses (2), (3) paragraph or this clause (5) of this paragraph (b4);
(65) Indebtedness owed by the incurrence by Loral Space Issuer or any of its Restricted Subsidiaries of intercompany Indebtedness between to the Issuer or among Loral Space and any of its Restricted Subsidiaries; provided, however, provided that:
(Aa) if Loral Space the Issuer or any Guarantor is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to this Guaranty the Notes, in the case of the Subordinated NotesIssuer, or the Subsidiary Guarantee of such Guarantor, in the case of a Guarantor; and
(Bb) (ix) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space the Issuer or a Wholly Owned Restricted Subsidiary thereof and (iiy) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space the Issuer or a Wholly Owned Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space the Issuer or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (5);
(6)) Hedging Obligations with respect to (a) interest rates on any Indebtedness that is permitted by the terms of this Indenture to be outstanding, (b) foreign currency exchange rates, (c) prices of recycled paper, fiber, aluminum, tin, glass, rubber, plastics or other recycled products or (d) the price of fuel required for the operations of the businesses of the Issuer and its Restricted Subsidiaries; provided that (i) any such Hedging Obligation of the type described in clauses (b) through (d) will be permitted by this clause (6) only if it was entered into not for speculative purposes, (ii) in the case of Hedging Obligations of the type described in clause (a) above, any such Hedging Obligations will be permitted by this clause (6) only to the extent the notional principal amount of such Hedging Obligations, when incurred, does not exceed the principal amount of the Indebtedness to which such Hedging Obligations relate and (iii) in the case of Hedging Obligations of the type described in clause (b) above, such Hedging Obligations are not entered into for speculative purposes;
(7) obligations in the incurrence ordinary course of business in respect of workers’ compensation claims, self-insurance obligations, performance, surety, landfill closure, solid waste disposal, reclamation and similar bonds and completion bonds and bid guarantees with respect to the assets or business of the Issuer or any of its Restricted Subsidiaries;
(8) (x) the Guarantee by Loral Space the Issuer or any Guarantor of Indebtedness of the Issuer or a Guarantor and (y) the guarantee by any Restricted Subsidiary that is not a Guarantor of Indebtedness of any other Restricted Subsidiary that is not a Guarantor; provided that, in each case, the Indebtedness being guaranteed is permitted to be incurred by another provision of this Indenture;
(9) indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business or assets of the Issuer or any of its Restricted Subsidiaries or Capital Stock of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk or currency exchange rate risk;
(8) 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, and the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of the same class of Disqualified Stock or Preferred Stock, as the case may be, will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.05;
(9) the incurrence by Loral Space or any of its Restricted Subsidiaries; provided that the maximum aggregate liability in respect of all of such obligations outstanding under this clause (9) shall at no time exceed the gross proceeds including non-cash proceeds (the Fair Market Value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Issuer and its Restricted Subsidiaries in connection with such dispositions;
(10) Indebtedness of additional Indebtedness in the Issuer or any Restricted Subsidiary of the Issuer (including Acquired Debt and earnouts) incurred to finance an aggregate principal amount (acquisition, merger, consolidation or accreted value, as applicable) at any time outstandingamalgamation, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance refinance, replace, defease or replace discharge any Indebtedness incurred pursuant to this clause (910); provided that on the date of such acquisition, merger, consolidation or amalgamation after giving pro forma effect thereto as if the same had occurred at the beginning of the applicable four-quarter period, the Issuer would either (A) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth in the first paragraph of this Section 4.10; or (B) have a Consolidated Fixed Charge Coverage Ratio of not less than the Consolidated Fixed Charge Coverage Ratio of the Issuer immediately prior to such acquisition, merger, consolidation or amalgamation;
(11) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds; provided that such Indebtedness is extinguished within five business days of incurrence;
(12) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is non-recourse to the Issuer or any Restricted Subsidiary other than a Receivables Subsidiary (except for Standard Securitization Undertakings);
(13) Indebtedness of the Issuer or any Restricted Subsidiary in respect of (a) letters of credit, bankers’ acceptances or other similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business, (b) the financing of insurance premiums in the ordinary course of business or (c) Bank Products Obligations; and
(14) additional Indebtedness in an aggregate amount under this clause (14) not to exceed $50 million; or
(10) the incurrence by Restricted Subsidiaries of Guarantees of Indebtedness of Loral Space or 65.0 million at any Restricted Subsidiary that is time outstanding. The Issuer will not subordinated incur, and will not permit any Guarantor to the Guaranty of the Subordinated Notes.
(c) Loral Space shall not incur incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of Loral Space the Issuer or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty of Notes and the Subordinated Notes applicable Guarantee on substantially identical the same terms; provided, however, that no Indebtedness of Loral Space shall will be deemed to be contractually subordinated in right of payment to any other Indebtedness of Loral Space the Issuer solely by virtue of being unsecured.
(d) unsecured or by virtue of being secured on a first or junior Lien basis. Notwithstanding any other provision in this Section 4.10, the maximum amount of Indebtedness that the Issuer or any of its Restricted Subsidiaries may incur pursuant to this Section 4.10 shall not be deemed to be exceeded as a result of fluctuations in exchange rates of currencies. The outstanding principal amount of any particular Indebtedness shall be counted only once and any obligation arising under any Guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness shall be disregarded, so long as the obligor is permitted to incur such obligation. For purposes of determining compliance with this Section 4.054.10, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (1014) of paragraph (b) of this Section 4.05above, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.05the Coverage Ratio Exception, Loral Space shall the Issuer will be permitted to divide and classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.054.10 (provided that all Indebtedness outstanding under the Senior Secured Credit Facilities on the Release Date, for the avoidance of doubt only to the extent such Indebtedness is not refinanced, repaid or prepaid after the Release Date, shall be deemed to have been incurred pursuant to clause (1) above).
Appears in 1 contract
Sources: Indenture (Trestle Transport, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space The Parent shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create, incur, issue, assume, guarantee Guarantee or otherwise become directly or indirectly liable, contingently or otherwise, liable with respect to (or, collectively, "“incur"”) any Indebtedness (including Acquired Debt), ) and Loral Space shall not issue any Disqualified Stock and the Parent shall not permit any of its Restricted Subsidiaries Subsidiary to issue any shares of Preferred Stockpreferred stock; provided, however, that Loral Space or any Restricted Subsidiary the Parent may incur Indebtedness (including Acquired Debt), and Loral Space may issue Disqualified Stock, and any permit a Restricted Subsidiary may issue Preferred Stock, if, after giving effect to the incurrence of such incur Indebtedness or issue preferred stock if at the issuance of such Disqualified Stock or Preferred Stock and the application of the proceeds thereof, no Loral Space Default would occur as a consequence time of such incurrence or issuance or be continuing following such incurrence or issuance and either after giving effect thereto (1) including a pro forma application of the Consolidated Leverage Ratio of Loral Space net proceeds therefrom), the leverage ratio would be less than 5.0 6.5 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of the most recent available quarterly or annual balance sheet is less than 2.0 to 1.0.
(b) Nothing contained in paragraph (a) of this Section 4.05 . The foregoing limitations shall prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):not apply to:
(1) the incurrence by Loral Space and its the Parent or any Restricted Subsidiaries Subsidiary of additional Indebtedness and letters of credit pursuant to under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Parent and the Restricted Subsidiaries thereunder) not to exceed $850 million as of such date of incurrence less the aggregate amount of all Net Proceeds of Asset Sales applied to repay term Indebtedness outstanding under one or more Credit Facilities pursuant to clause (1) of paragraph (b) of Section 4.143,260.0 million;
(2) the issuance of the Note Guarantees on the date hereof;
(3) the incurrence by Loral Space the Parent and its the Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by Loral Space of Indebtedness represented by the Subordinated Notes and Loral Space's 9 1/2% Senior Subordinated Notes due 2006;
(4) the issuance by a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt); provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this clause (4)Notes on the date hereof;
(5) the incurrence by Loral Space or any of its the Parent and the Restricted Subsidiaries of Permitted Capital Lease Obligations, mortgage financings and/or additional Indebtedness constituting purchase money obligations, including all Refinancing Indebtedness in exchange forincurred with respect thereto, or up to an aggregate at any one time outstanding of the net proceeds greater of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness)that was permitted by this Guaranty to be incurred under paragraph i) $250.0 million and (aii) 5.0% of this Section 4.05 or clauses (2), (3) or this clause (5) Consolidated Total Assets as of this paragraph (b)any date of incurrence;
(6) the incurrence by Loral Space or any issuance of its Restricted Subsidiaries of intercompany Indebtedness or preferred stock between or among Loral Space and any of its Restricted Subsidiaries; provided, however, that:
(A) if Loral Space is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to all Obligations with respect to this Guaranty of the Subordinated Notes; and
(B) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space or a the Parent and the Restricted Subsidiary thereof Subsidiaries and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space or a the Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6)Subsidiaries;
(7) the incurrence by Loral Space or any of its the Parent and the Restricted Subsidiaries of Hedging Obligations that are incurred for in the purpose ordinary course of fixing or hedging interest rate risk or currency exchange rate riskbusiness;
(8) the incurrence by the Parent and the Restricted Subsidiaries of Indebtedness arising out of letters of credit, performance bonds, surety bonds and bankers’ acceptances incurred in the ordinary course of business;
(9) the incurrence by the Parent and the Restricted Subsidiaries of Indebtedness consisting of Guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock;
(10) the incurrence by the Parent or any Restricted Subsidiary 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 (5) Business Days;
(11) the Guarantee by the Parent or any Subsidiary Guarantor of Indebtedness of the Parent or a Restricted Subsidiary and the Guarantee by any non-Guarantor Subsidiary of Indebtedness of another non-Guarantor Subsidiary, in each case, to the extent that the Guaranteed Indebtedness was permitted to be incurred by another provision of this Section 4.10; provided that if the Indebtedness being Guaranteed is contractually subordinated to the Notes or the Note Guarantees, as applicable, then the Guarantee must be subordinated to the same extent as the Indebtedness Guaranteed;
(12) the incurrence by the Parent and the Restricted Subsidiaries of Refinancing Indebtedness issued in exchange for, or the proceeds of which are used to repay, redeem, defease, extend, refinance, renew, replace or refund, Indebtedness (other than intercompany Indebtedness) referred to in clauses (2) through (5) above, this clause (12) or clause (13) below or that was otherwise permitted to be incurred pursuant to the test set forth in the first paragraph of this Section 4.10; and
(13) the incurrence by the Parent or any Restricted Subsidiary of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (13), not to exceed $50.0 million. Notwithstanding the foregoing, Restricted Subsidiaries that are non-Guarantor Subsidiaries (excluding the Company for this purpose) will not be permitted to incur Indebtedness or issue preferred stock pursuant to the first paragraph of this Section 4.10 or clause (13) above if, after giving effect to such incurrence or issuance, the aggregate principal amount of Indebtedness of such Restricted Subsidiaries that are non-Guarantor Subsidiaries (excluding intercompany Indebtedness between or among the Parent and the Restricted Subsidiaries) outstanding pursuant to such first paragraph or such clause, together with the aggregate liquidation preference of preferred stock issued by such Restricted Subsidiaries that are non-Guarantor Subsidiaries (excluding intercompany preferred stock issued between or among the Parent and the Restricted Subsidiaries) outstanding pursuant to such provisions, would exceed the greater of (x) $750.0 million and (y) 1.0x Adjusted EBITDA as of any date of incurrence. The Parent will not incur, and the Parent will not permit the Company or any Subsidiary Guarantor to incur, any Indebtedness that is contractually subordinated in right of payment to any other Indebtedness of the Parent, the Company or such Subsidiary Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Note Guarantee 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 Parent, the Company or a Subsidiary Guarantor solely by virtue of being unsecured or by virtue of being secured on a junior priority basis. For purposes of determining compliance with this Section 4.10, for the avoidance of doubt, in the event that an item of Indebtedness meets the criteria of more than one of the categories of permitted debt described in clauses (1) through (13) above, or is entitled to be incurred pursuant to the first paragraph of this Section 4.10, the Parent 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 Section 4.10. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued and authenticated under this Indenture will at all times be deemed to have been incurred on such date in reliance on the exception provided by clause (1) above. The accrual of interestinterest or preferred stock dividends, 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 preferred stock or Disqualified Stock or Preferred Stock in the form of additional shares of the same class of preferred stock or Disqualified Stock or Preferred Stock, as the case may be, will not be deemed to be an incurrence of Indebtedness or an issuance of preferred stock or Disqualified Stock or Preferred Stock for purposes of this Section 4.05;
(9) the incurrence by Loral Space or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (9), not to exceed $50 million; or
(10) the incurrence by Restricted Subsidiaries of Guarantees of Indebtedness of Loral Space or any Restricted Subsidiary that is not subordinated to the Guaranty of the Subordinated Notes.
(c) Loral Space shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of Loral Space unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty of the Subordinated Notes on substantially identical terms4.10; provided, howeverin each such case, that no Indebtedness the amount thereof is included in the Consolidated Interest Expense of Loral Space shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of Loral Space solely by virtue of being unsecured.
(d) the Parent as accrued. For purposes of determining compliance with this Section 4.05any U.S. Dollar-denominated restriction on the incurrence of Indebtedness, the U.S. Dollar-equivalent principal amount of Indebtedness denominated in a currency other than U.S. Dollars will be calculated based on the event relevant currency exchange rate in effect on the date such Indebtedness was incurred; provided that an item of proposed if such Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (10) of paragraph (b) of this Section 4.05is incurred to extend, replace, refund, refinance, renew or defease, or that is entitled exchanged for, other Indebtedness denominated in a currency other than U.S. Dollars, and such extension, replacement, refunding, refinancing, renewal, defeasance or exchange would cause the applicable U.S. Dollar-denominated restriction to be incurred pursuant to paragraph (a) of this Section 4.05, Loral Space shall be permitted to classify such item of Indebtedness exceeded if calculated at the relevant currency exchange rate in effect on the date of its incurrence in such extension, replacement, refunding, refinancing, renewal, defeasance or exchange, such U.S. Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed, defeased or exchanged. Notwithstanding any manner that complies with other provision of this Section 4.054.10, the maximum amount of Indebtedness that the Parent or any Restricted Subsidiary may incur pursuant to this Section 4.10 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:
(1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(3) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(i) the Fair Market Value of such assets at the date of determination; and
(ii) the amount of the Indebtedness of the other Person.
Appears in 1 contract
Sources: Senior Indenture (Iron Mountain Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space The SPV Parties 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") any Indebtedness other than the following (including Acquired Debt), and Loral Space shall not issue any Disqualified Stock Parent and shall not permit any of its Restricted Subsidiaries shall not, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to issue any shares Indebtedness with respect to any Pre-paid Miles Purchase other than as set forth in clause (b) below):
(a) Junior Lien Debt; provided that (i) prior to the incurrence of Preferred Stock; providedsuch Junior Lien Debt, howeverthe Rating Agency Condition shall have been satisfied with respect to the incurrence of such Junior Lien Debt, (ii) no Event of Default or Early Amortization Event shall have occurred and be continuing or would result from the issuance of such Junior Lien Debt, (iii) to the extent that Loral Space or any Restricted Subsidiary may incur Indebtedness (including Acquired Debt), and Loral Space may issue Disqualified Stock, and any Restricted Subsidiary may issue Preferred Stock, if, immediately after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or Preferred Stock and Junior Lien Debt the application aggregate outstanding amount of Junior Lien Debt would exceed $1,000,000,000, the proceeds thereof, no Loral Space Default would occur as a consequence ratio of such incurrence or issuance or be continuing following such incurrence or issuance and either (1A) (I) the Consolidated Leverage Ratio aggregate outstanding amount of Loral Space would be less than 5.0 to 1.0, or Junior Lien Debt (2including such Junior Lien Debt being then issued) Loral Space's Consolidated Capital Ratio as plus (II) the greater of (x) the then-outstanding principal amount of Priority Lien Debt and (y) the Priority Lien Cap divided by (B) the sum of (x) the aggregate amount of Transaction Revenue received during the period of four consecutive Quarterly Reporting Periods ending on the most recent available quarterly Determination Date and (y) funds transferred to the Collection Account pursuant to Section 2.24 in connection with such Determination Date, shall not exceed 1.65 to 1.00 on a pro forma basis and (iv) such Junior Lien Debt shall not be incurred by or annual balance sheet is less subject to a guarantee by any Subsidiary of Parent other than 2.0 to 1.0.any SPV Party, unless such Subsidiary guarantees the Term Loans;
(b) Nothing contained in paragraph (a) of this Section 4.05 shall prohibit the incurrence of any of the following items of Indebtedness (collectivelyPre-paid Miles Purchases, "Permitted Debt"):so long as:
(1i) the incurrence by Loral Space and its Restricted Subsidiaries of additional Indebtedness and letters of credit pursuant to Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (1) not to exceed $850 million as of such date of incurrence less the aggregate amount of Miles purchased under all Net Proceeds of Asset Sales applied to repay term Indebtedness outstanding under one or more Credit Facilities pursuant to clause (1) of paragraph (b) of Section 4.14;
(2) Pre-paid Miles Purchases since the incurrence by Loral Space and its Restricted Subsidiaries Closing Date does not reduce the present value of the Existing Indebtedness;
cash payments to the Loan Parties under the related co-brand, partnering or similar agreements relating to the AAdvantage Program by more than $550,000,000 (3) computed on the incurrence by Loral Space date of Indebtedness represented by the Subordinated Notes and Loral Space's 9 1/2each Pre-paid Miles Purchase using a discount rate equal to 5.75% Senior Subordinated Notes due 2006;
(4) the issuance by a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt); provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this clause (4per annum);
(5ii) such sale is non-refundable by the SPV Parties and non-recourse to the SPV Parties;
(iii) such Miles are purchased by American from Loyalty Co pursuant to the Intercompany Agreement in order to satisfy its obligations in connection therewith;
(iv) the incurrence Indebtedness related thereto is unsecured or secured by Loral Space assets of Parent or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness)that was permitted by this Guaranty to be incurred under paragraph the SPV Parties) that do not constitute Collateral (a) of this Section 4.05 or clauses (2), (3) or this clause (5) of this paragraph (b);
(6) the incurrence by Loral Space or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Loral Space and any of its Restricted Subsidiaries; provided, however, that:
(A) if Loral Space is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to all Obligations with respect to this Guaranty of the Subordinated Notes; and
(B) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space or a Restricted Subsidiary thereof shall be deemedsubject, in each case, to constitute an incurrence customary rights of setoff) and (v) no Early Amortization Period or Event of Default is continuing at the time of such Indebtedness by Loral Space sale or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6)would immediately result therefrom;
(7c) the incurrence by Loral Space or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk or currency exchange rate risk;
(8) the accrual of interest, the accretion or amortization of original issue discount, the payment of interest on Indebtedness under this Agreement and Qualifying Note Debt and any Indebtedness issued in a Capital Markets Offering by the Borrowers; provided that (i) any such Indebtedness (other than with respect to clauses (A) and (B) below, (1) customary bridge loans which, subject only to customary conditions (which shall be limited to no payment or bankruptcy event of default) would either automatically be converted into or required to be exchanged for long-term refinancing in the form of additional Incremental Term Loans permitted under (and subject to the requirements of) Section 2.27, Replacement Term Loans permitted under (and subject to the requirements of) Section 10.08 or Priority Lien Debt permitted under (and subject to the requirements of) this Section 6.02(c) and (2) Indebtedness with under this Agreement incurred on the same termsClosing Date or Qualifying Note Debt so long as, in each case, such Indebtedness or Qualifying Note Debt is not amended to make the maturity date thereof earlier than the maturity date thereof as in effect on the Closing Date or to shorten the Weighted Average Life to Maturity thereof), (A) shall have a maturity date not earlier than the Latest Maturity Date, (B) shall have a Weighted Average Life to Maturity thereof no shorter than the remaining Weighted Average Life to Maturity of the then-outstanding Term Loans or notes outstanding pursuant to this clause (c), and (C) shall not be subject to or benefit from any Guarantee by any Person other than a Loan Party, (ii) after giving effect to such Indebtedness, the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares outstanding principal amount of the same class Priority Lien Debt shall not exceed the Priority Lien Cap (plus, fees, expenses, premium and accrued interest in respect of Disqualified Stock or Preferred Stock, as the case may be, will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.05;
(9) the incurrence by Loral Space or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (9), not to exceed $50 million; or
(10Section 6.02(c) the incurrence by Restricted Subsidiaries of Guarantees of Indebtedness of Loral Space or any Restricted Subsidiary that is not subordinated to the Guaranty of the Subordinated Notes.
(c) Loral Space shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any which refinances other Indebtedness of Loral Space unless Loyalty Co permitted hereunder), (iii) prior to the issuance of any additional Indebtedness issued in a Capital Markets Offering after the initial issuance, the Rating Agency Condition shall have been satisfied, and (iv) in the case of the issuance of any additional Indebtedness issued in a Capital Markets Offering other than Qualifying Note Debt, (A) the terms and conditions governing such Indebtedness is also contractually subordinated in right of payment shall (x) be reasonably acceptable to the Loral Space Guaranty Administrative Agent or (y) be substantially similar to, or (taken as a whole) no more favorable (as reasonably determined by Loyalty Co) to the investors or holders providing such Indebtedness than those applicable to the then-outstanding Term Loans (except to the extent such terms (I) are conformed (or added) in the Loan Documents for the benefit of the Subordinated Notes on substantially identical Lenders holding then-outstanding Term Loans pursuant to an amendment hereto or thereto subject solely to the reasonable satisfaction of Loyalty Co and the Administrative Agent, (II) are applicable solely to periods after the latest final maturity date of the then-outstanding Term Loans at the time of such incurrence or (III) consist of pricing, fees, rate floors, premiums, optional prepayment or redemption terms; provided, however, that no Indebtedness of Loral Space ) and (B) shall be deemed issued pursuant to the Indenture or one or more other indentures, and the trustee thereunder shall become a Senior Secured Debt Representative and the holders of such Indebtedness shall be contractually subordinated subject to and bound by the Collateral Agency and Accounts Agreement; provided that notwithstanding the foregoing, in right no event shall such Indebtedness be subject to events of payment default resulting (either directly or through a cross-default or cross-acceleration provision) from the occurrence of any event described in the definition of “Parent Bankruptcy Event” (or the occurrence of any such event with respect to any Subsidiary of Parent other than any SPV Party) except on the same terms as the then-outstanding Term Loans, (v) no Event of Default or Early Amortization Event shall have occurred and be continuing or would result from the issuance of such Indebtedness and (vi) other than in the case of Loral Space solely by virtue Qualifying Note Debt, the pro forma Peak Debt Service Coverage Ratio (calculated using the Maximum Quarterly Debt Service of being unsecured.the then-outstanding Priority Lien Debt and such Indebtedness) as of the immediately preceding Determination Date, immediately after giving effect to the issuance of such Indebtedness shall be more than 2.25 to 1.00;
(d) For purposes of determining compliance with Indebtedness arising from customary indemnification or other similar obligations under the Loan Documents and the other agreements entered into on the Closing Date in connection therewith (or replacements or amendments thereto which are permitted under this Section 4.05, in the event that an item of proposed Agreement); and
(e) Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (10) of paragraph (b) of this Section 4.05, or is entitled otherwise permitted to be incurred pursuant to paragraph (a) of this secured under Section 4.05, Loral Space shall be permitted to classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.056.06.
Appears in 1 contract
Sources: Term Loan Credit and Guaranty Agreement (American Airlines, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space shall The Company will 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"1) Incur any Indebtedness (including Acquired Debt), and Loral Space shall not or issue any Disqualified Stock and shall not Capital Stock; or
(2) cause or permit any of its Restricted Subsidiaries to Incur any Indebtedness or issue any shares of Preferred StockDisqualified Capital Stock or preferred stock, in each case, other than Permitted Indebtedness; provided, however, that Loral Space or any Restricted Subsidiary the Company may incur issue Disqualified Capital Stock and may Incur Indebtedness (including including, without limitation, Acquired Debt), and Loral Space any Guarantor may issue Disqualified Stockpreferred stock or Incur Indebtedness (including, and any Restricted Subsidiary may issue Preferred Stockwithout limitation, ifAcquired Debt), if immediately after giving pro forma effect to the incurrence of such Indebtedness proposed Incurrence or the issuance of such Disqualified Stock or Preferred Stock and the receipt and application of the net proceeds thereoftherefrom, no Loral Space Default would occur as a consequence of such incurrence or issuance or be continuing following such incurrence or issuance and either (1) the Company’s Consolidated Leverage Coverage Ratio of Loral Space would be less than 5.0 at least 2.00 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of the most recent available quarterly or annual balance sheet is less than 2.0 to 1.01.00.
(b) Nothing contained in paragraph (a) of this This Section 4.05 shall 4.09 will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "“Permitted Debt"Indebtedness”):
(1) Indebtedness of the incurrence Company or any Restricted Subsidiary outstanding on the Issue Date (other than Indebtedness under the Bank Credit Agreement) as reduced by Loral Space the amount of any scheduled amortization payments or mandatory prepayments when actually paid or permanent reductions thereof;
(2) Indebtedness Incurred by the Company under the Initial Notes and its by the Guarantors under the Guarantees;
(3) Indebtedness Incurred by the Company or any Restricted Subsidiaries of additional Indebtedness and letters of credit Subsidiary pursuant to the Bank Credit Facilities in an Agreement or other Credit Facilities; provided that the aggregate principal amount at any one time of all such Indebtedness outstanding under this clause (13) not to exceed $850 million as of such any date of incurrence less Incurrence (after giving pro forma effect to the application of the proceeds of such Incurrence), including all Permitted Refinancing Indebtedness Incurred to repay, redeem, extend, refinance, renew, replace, defease or refund any Indebtedness Incurred pursuant to this clause (3), shall not exceed the greater of (i) $3.85 billion and (ii) the maximum principal amount of Indebtedness that could be Incurred such that after giving effect to such Incurrence, the Company’s Consolidated Secured Leverage Ratio would be no greater than 5.00 to 1.00, to be reduced dollar-for-dollar by the aggregate amount of all Net Cash Proceeds of Asset Sales applied by an Obligor to repay term Indebtedness outstanding under one or more the Credit Facilities pursuant to clause (1) of paragraph (b) of Section 4.14;
(2) the incurrence by Loral Space and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by Loral Space of Indebtedness represented by the Subordinated Notes and Loral Space's 9 1/2% Senior Subordinated Notes due 20064.10 hereof;
(4) Indebtedness of a Restricted Subsidiary to the issuance Company or any Guarantor, or of the Company to any Guarantor, for so long as such Indebtedness is held by a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt)an Obligor; provided, however, provided that if as of any date any Person other than an Obligor acquires any such Indebtedness ceases to be Non-Recourse Debt or holds a Lien in respect of such Indebtedness (other than a SubsidiaryPermitted Lien), such event acquisition or holding shall be deemed to constitute be an incurrence Incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by constituting Permitted Indebtedness under this clause (4)) by the issuer of such Indebtedness;
(5) the incurrence by Loral Space or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness)that was permitted by this Guaranty to be incurred under paragraph (a) of this Section 4.05 or clauses (2), (3) or this clause (5) of this paragraph (b)Indebtedness;
(6) Indebtedness Incurred by the incurrence by Loral Space Company or any Restricted Subsidiary solely to finance the construction or acquisition or improvement of, or consisting of its Restricted Subsidiaries Capitalized Lease Obligations Incurred to acquire rights of intercompany Indebtedness between use in, property or among Loral Space assets or any kind whatsoever, whether real, personal or mixed and any of its Restricted Subsidiaries; providedwhether tangible or intangible and including all contract rights, howeverincome or revenue rights, that:
(A) if Loral Space is the obligor on such Indebtednessreal property interests, such Indebtedness must be expressly subordinated to all Obligations with respect to this Guaranty of the Subordinated Notes; and
(B) (i) any subsequent issuance trademarks, trade names, equipment or transfer of Equity Interests that results or ownership of any other Person useful in any such Indebtedness being held by a Person other than Loral Space Core Business, not to exceed the greater of (x) $200 million or a Restricted Subsidiary thereof and (iiy) any sale or other transfer 25% of any such Indebtedness to a Person that is not either Loral Space or a Restricted Subsidiary thereof shall be deemedLTM EBITDA, in each casecase in aggregate principal amount outstanding at any time (including all Permitted Refinancing Indebtedness Incurred to repay, redeem, extend, refinance, renew, replace, defease or refund any Indebtedness Incurred pursuant to constitute an incurrence of such Indebtedness by Loral Space or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6)) for all of the Company and its Restricted Subsidiaries;
(7) Hedging Obligations and Interest Swap Obligations entered into not as speculative Investments but as hedging transactions designed to protect the incurrence by Loral Space or any of Company and its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing against fluctuations in interest rates in connection with Indebtedness otherwise permitted hereunder or hedging interest against exchange rate risk or currency exchange rate commodity pricing risk;
(8) Indebtedness of the accrual Company or any Restricted Subsidiary arising in respect of interest(x) performance bonds, completion guarantees and similar arrangements (to the accretion or amortization extent that the Incurrence thereof does not result in the Incurrence of original issue discount, any obligation for the payment of interest on any Indebtedness borrowed money of others), in the form ordinary course of additional business; provided, that such Indebtedness shall be Incurred solely in connection with the same termsdevelopment, and the payment construction, improvement or enhancement of dividends on Disqualified Stock or Preferred Stock assets useful in the form of additional shares business of the same class Company and its Restricted Subsidiaries or the development, improvement or enhancement of Disqualified Stock the operations of the Company and its Restricted Subsidiaries or Preferred Stock, as the case may be, will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.05(y) Support Agreements;
(9) the incurrence by Loral Space or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (9), not to exceed $50 million; or
(10) the incurrence by Restricted Subsidiaries of Guarantees of Indebtedness of Loral Space the Company or any Restricted Subsidiary that is not subordinated arising in respect of letters of credit, bankers’ acceptances, worker’s compensation claims, payment obligations in connection with self-insurance or similar obligations, surety bonds and appeal bonds (to the Guaranty extent that the Incurrence thereof does not result in the Incurrence of any obligation for the Subordinated Notes.
(c) Loral Space shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right payment of payment to any other Indebtedness borrowed money of Loral Space unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty of the Subordinated Notes on substantially identical terms; provided, however, that no Indebtedness of Loral Space shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of Loral Space solely by virtue of being unsecured.
(d) For purposes of determining compliance with this Section 4.05others), in the event that an item ordinary course of proposed Indebtedness meets business, in amounts and for the criteria of more than one of the categories of Permitted Debt described purposes customary in clauses (1) through (10) of paragraph (b) of this Section 4.05, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.05, Loral Space shall be permitted to classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.05.Person’s industry;
Appears in 1 contract
Sources: Indenture (Red Rock Resorts, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space shall not, and shall not permit any of its Restricted Subsidiaries to, directly 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 Loral Space the Borrowers shall not issue any Disqualified Stock and shall not permit any of its their Restricted Subsidiaries to issue any shares of Preferred Stockpreferred stock; provided, however, that Loral Space or any Restricted Subsidiary the Borrowers may incur Indebtedness (including Acquired Debt), and Loral Space may ) or issue Disqualified Stock, and any of their respective Restricted Subsidiary Subsidiaries may incur Indebtedness (including Acquired Debt) or issue Preferred Stockpreferred stock, if, after giving effect so long as the Fixed Charge Coverage Ratio is equal to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or Preferred Stock and the application of the proceeds thereof, no Loral Space Default would occur as a consequence of such incurrence or issuance or be continuing following such incurrence or issuance and either (1) the Consolidated Leverage Ratio of Loral Space would be less greater than 5.0 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of 2.00:1.00 for the most recent available quarterly or annual balance sheet is less than 2.0 to 1.0recently ended Test Period (calculated on a pro forma basis).
(b) Nothing contained in paragraph (a) The provisions of this Section 4.05 6.01(a) shall not prohibit the incurrence of any of the following items of Indebtedness (collectively, "“Permitted Debt"”):
(1i) (A) the incurrence of Indebtedness and Letters of Credit hereunder and under the other Loan Documents (other than any Indebtedness and Letters of Credit arising from New Commitments pursuant to and in accordance with Section 2.24) and (B) the incurrence by Loral Space the Borrowers, any Subsidiary Guarantor and its Restricted Subsidiaries any Excluded Subsidiary pursuant to and in accordance with clause (c) of additional the definition thereof (and the guarantee thereof by the Borrowers, the Subsidiary Guarantors and/or any Excluded Subsidiary pursuant to and in accordance with clause (c) of the definition thereof) of Indebtedness and letters of credit under other Credit Facilities and Indebtedness and Letters of Credit arising from New Commitments pursuant to Credit Facilities and in accordance with Section 2.24 in an aggregate principal amount at any one time outstanding under this clause (1i)(B) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Parent Borrower and its Restricted Subsidiaries thereunder) not to exceed the difference between (x) (X) prior to the Hurricane Acquisition Closing Date, the greater of (I) $850 million as 10,930,250,000 and (II) 42% of Total Assets, and (Y) on and after the Hurricane Acquisition Closing Date, the greater of (I) $15,000,000,000 and (II) 42% of Total Assets, and (y) the aggregate principal amount at such date of incurrence time outstanding under clause (i)(A) above less the aggregate amount of all repayments, optional or mandatory, of the principal of any term Indebtedness under a Credit Facility that have been made by the Parent Borrower or any of its Restricted Subsidiaries since the Issue Date with the Net Proceeds of Asset Sales applied (other than Excluded Proceeds) and less, without duplication, the aggregate amount of all repayments or commitment reductions with respect to repay term Indebtedness outstanding any revolving credit borrowings under one a Credit Facility that have been made by the Parent Borrower or more Credit Facilities pursuant to clause any of its Restricted Subsidiaries since the Issue Date as a result of the application of the Net Proceeds of Asset Sales (1other than Excluded Proceeds), in each case in accordance with Sections 2.13(b) of paragraph and 6.04 (b) of excluding temporary reductions in revolving credit borrowings as contemplated by Section 4.146.04);
(2ii) the incurrence by Loral Space the Parent Borrower and its Restricted Subsidiaries of the Existing Indebtedness;
(3iii) the incurrence by Loral Space the Borrowers of Indebtedness represented by the Subordinated Senior Notes and Loral Space's 9 1/2% the Senior Subordinated Secured Notes due 2006issued on or prior to the Fourteenth Amendment Effective Date (or, solely with respect to the Senior Secured First Lien Notes issued by the Borrowers in connection with the consummation of the Jetson Acquisition and/or the Hurricane Acquisition referred to in the definition of “Senior Secured Notes”, on or prior to the Jetson Acquisition Closing Date and/or the Hurricane Acquisition Closing Date, as applicable) and the related Guarantees thereof by the Subsidiary Guarantors and any Excluded Subsidiary pursuant to and in accordance with clause (c) of the definition thereof;
(4) the issuance by a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt); provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this clause (4);
(5iv) the incurrence by Loral Space the Parent Borrower or any of its Restricted Subsidiaries of 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 or lease of property (real or personal), plant or equipment used or useful in the business of the Parent Borrower or any of its Restricted Subsidiaries or incurred within 180 days thereafter, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance, replace, defease or discharge any Indebtedness incurred 131 US-DOCS\159452469.6 pursuant to this clause (iv), in an aggregate outstanding principal amount not to exceed as of any date of incurrence (A) prior to the Hurricane Acquisition Closing Date, the greatest of (x) $1,800,000,000, (y) 7.0% of Total Assets and (z) 55.0% of Consolidated Cash Flow for the most recently ended Test Period (calculated on a pro forma basis), and (B) on and after the Hurricane Acquisition Closing Date, the greatest of (x) $3,000,000,000, (y) 7.0% of Total Assets and (z) 55.0% of Consolidated Cash Flow for the most recently ended Test Period (calculated on a pro forma basis) (the “Non-Ratio Based Purchase Money Basket”); provided that, the Parent Borrower or any Restricted Subsidiary may incur additional amounts under this clause (iv) (without regard to, and at any time prior to the utilization of amounts under, the Non-Ratio Based Purchase Money Basket) in an unlimited amount long as the Consolidated Total Net Leverage Ratio does not exceed (A) prior to the Hurricane Acquisition Closing Date, 3.00:1.00 for the most recently ended Test Period (calculated on a pro forma basis), and (B) on and after the Hurricane Acquisition Closing Date, 4.00:1.00 for the most recently ended Test Period (calculated on a pro forma basis).
(v) the incurrence by the Parent Borrower or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance refinance, replace, defease or replace discharge Indebtedness (other than intercompany Indebtedness)that that was permitted by this Guaranty Agreement to be incurred under paragraph (aSection 6.01(a) of this Section 4.05 or clauses (2Sections 6.01(b)(ii), (36.01(b)(iii), 6.01(b)(iv), 6.01(b)(v), 6.01(b)(vi), 6.01(b)(xv), 6.01(b)(xvi), 6.01(b)(xvii), 6.01(b)(xviii), 6.01(b)(xix), 6.01(b)(xxii), 6.01(b)(xxiii), 6.01(b)(xxiv), 6.01(b)(xxv) or this clause (5) of this paragraph (band 6.01(b)(xxvi);
(6vi) the incurrence by Loral Space the Parent Borrower or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Loral Space the Parent Borrower and any of its Restricted Subsidiaries; provided, however, that:
(A1) if Loral Space any Borrower or Subsidiary Guarantor is the obligor on such IndebtednessIndebtedness and the payee is not a Borrower or Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to this Guaranty of the Subordinated NotesGuaranteed Obligations; and
(B2) (iA) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space the Parent Borrower or a Restricted Subsidiary thereof and (iiB) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space the Parent Borrower or a Restricted Subsidiary thereof shall Subsidiary; will be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space the Parent Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6vi);
(7vii) the issuance by any of the Parent Borrower’s Restricted Subsidiaries to the Parent Borrower or to any of its Restricted Subsidiaries of shares of preferred stock; provided, however, that:
(1) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Parent Borrower or a Restricted Subsidiary; and
(2) any sale or other transfer of any such preferred stock to a Person that is not either the Parent Borrower or a Restricted Subsidiary; will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (vii);
(viii) the incurrence by Loral Space the Parent Borrower or any of its Restricted Subsidiaries of Hedging Obligations Obligations; 132 US-DOCS\159452469.6
(ix) the Guarantee by (i) the Borrowers or any of the Subsidiary Guarantors of Indebtedness of the Borrowers or a Subsidiary Guarantor that are was permitted to be incurred for by another provision of this Section 6.01; (ii) any of the purpose Excluded Project Subsidiaries of fixing Indebtedness of any other Excluded Project Subsidiary; and (iii) any of the Excluded Foreign Subsidiaries of Indebtedness of any other Excluded Foreign Subsidiary; provided that, if the Indebtedness being guaranteed is subordinated to or hedging interest rate risk or currency exchange rate riskpari passu with the Guaranteed Obligations, then the guarantee shall be subordinated to the same extent as the Indebtedness guaranteed;
(8) 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, and the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of the same class of Disqualified Stock or Preferred Stock, as the case may be, will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.05;
(9x) the incurrence by Loral Space the Parent Borrower 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 (except in the case of daylight overdrafts) inadvertently drawn against insufficient funds in the ordinary course of business, so long as such Indebtedness is covered within five Business Days;
(xi) the incurrence by the Parent Borrower or any of its Restricted Subsidiaries of Indebtedness in respect of (i) workers’ compensation claims, self-insurance obligations, bankers’ acceptance and (ii) performance and surety bonds provided by the Parent Borrower or a Restricted Subsidiary in the ordinary course of business;
(xii) the incurrence of Non-Recourse Debt by any Excluded Project Subsidiary, and any Non-Recourse Guarantee in respect thereof;
(xiii) the incurrence of Indebtedness arising (or deemed to be arising) from agreements of the Parent Borrower or any Restricted Subsidiary providing for indemnification, earn-outs, seller notes, adjustment of purchase price or any similar obligations, in each case, incurred or assumed in connection with any acquisition or Investment or the disposition of any business, assets or Equity Interests of any Subsidiary; provided that, the aggregate maximum liability associated with such provisions may not exceed the gross proceeds (including non-cash proceeds) of such disposition;
(xiv) the incurrence by the Parent Borrower or any Restricted Subsidiary of Indebtedness represented by letters of credit, guarantees or other similar instruments supporting Hedging Obligations of the Parent Borrower or any of its Restricted Subsidiaries (other than Excluded Subsidiaries) permitted to be incurred by this Agreement;
(xv) Indebtedness, Disqualified Stock or preferred stock of Persons or assets that are acquired by the Parent Borrower or any Restricted Subsidiary or merged into the Parent Borrower or a Restricted Subsidiary in accordance with the terms of this Agreement; provided that, such Indebtedness, Disqualified Stock or preferred stock is not incurred in contemplation of such acquisition or merger; and provided, further, that after giving effect to such acquisition or merger, either:
(1) the Borrowers would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 6.01(a); or
(2) the Fixed Charge Coverage Ratio would be greater than immediately prior to such acquisition or merger;
(xvi) Environmental CapEx Debt; provided that, prior to the incurrence of any Environmental CapEx Debt, the Parent Borrower shall deliver to the Administrative Agent an Officer’s Certificate designating such Indebtedness as Environmental CapEx Debt;
(xvii) Indebtedness incurred to finance Necessary Capital Expenditures; provided that, prior to the incurrence of any Indebtedness to finance Necessary Capital Expenditures, the Parent Borrower shall deliver to the Administrative Agent an Officer’s Certificate designating such Indebtedness as Necessary CapEx Debt; 133 US-DOCS\159452469.6
(xviii) Indebtedness of the Parent Borrower or any Restricted Subsidiary consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(xix) the incurrence by the Parent Borrower or any of its Restricted Subsidiaries of Contribution Indebtedness;
(xx) the incurrence by the Parent Borrower and/or any of its Restricted Subsidiaries of Indebtedness that constitutes a Permitted Tax Lease;
(xxi) the issuance of Third Party Securities by a Securitization Vehicle and the incurrence of Securitization Related Indebtedness in an aggregate outstanding principal amount not to exceed as of any date of issuance (A) prior to the Hurricane Acquisition Closing Date, the greatest of (x) $2,500,000,000, (y) 10% of Total Assets and (z) 80.0% of Consolidated Cash Flow for the most recently ended Test Period (calculated on a pro forma basis), and (B) on and after the Hurricane Acquisition Closing Date, the greatest of (x) $4,250,000,000, (y) 10% of Total Assets and (z) 80.0% of Consolidated Cash Flow for the most recently ended Test Period (calculated on a pro forma basis), and to the extent constituting Indebtedness, any Standard Securitization Undertaking relating thereto;
(xxii) the incurrence, issuance or assumption by the Parent Borrower and/or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding), including all Permitted Refinancing Indebtedness incurred to refund, refinance refinance, replace, defease or replace discharge any Indebtedness incurred pursuant to this clause (9xxii), in an aggregate outstanding principal amount not to exceed as of any date of incurrence, issuance or assumption (A) prior to the Hurricane Acquisition Closing Date, the greatest of (x) $50 million1,300,000,000, (y) 5.0% of Total Assets and (z) 40.0% of Consolidated Cash Flow for the most recently ended Test Period (calculated on a pro forma basis), and (B) on and after the Hurricane Acquisition Closing Date, the greatest of (x) $2,250,000,000, (y) 5.0% of Total Assets and (z) 40.0% of Consolidated Cash Flow for the most recently ended Test Period (calculated on a pro forma basis); orprovided that, the amount of Indebtedness permitted to be incurred, issued or assumed pursuant to this clause (xxii) shall be reduced on a dollar-for-dollar basis by the amount of Indebtedness incurred in reliance on the Reallocated Amount;
(10xxiii) the incurrence by a Borrower and/or any of its Restricted Subsidiaries of Guarantees senior or subordinated notes (including notes issued in a public offering, Rule 144A or other private placement or bridge financing in lieu of Indebtedness the foregoing) or senior or subordinated loans (and/or commitments in respect of Loral Space any of the foregoing) issued or incurred in lieu of New Commitments (such notes or loans, “Incremental Equivalent Debt”); provided that, (i) the aggregate outstanding principal amount (or committed amount, if applicable) of all Incremental Equivalent Debt shall not exceed the Maximum Incremental Amount less the aggregate principal amount of New Commitments (and loans made pursuant to such New Commitments) established pursuant to Section 2.24, (ii) to the extent any Incremental Equivalent Debt is secured by the Collateral, it shall be secured only on a pari passu or junior basis with the Liens securing the Obligations and be subject to a customary intercreditor agreement reasonably acceptable to the Administrative Agent and the Parent Borrower, (iii) the aggregate outstanding principal amount of Incremental Equivalent Debt that is guaranteed by any Restricted Subsidiary that is not subordinated a Loan Party or secured by assets other than the Collateral (other than cash collateral or letters of credit, which may be used as exclusive security) shall not exceed as of any date of incurrence or issuance (A) prior to the Guaranty Hurricane Acquisition Closing Date, the greatest of (x) $300,000,000, (y) 1.25% of Total Assets and (z) 10.0% of Consolidated Cash Flow for the Subordinated Notes.
most recently ended Test Period (ccalculated on a pro forma basis), and (B) Loral Space shall not incur any Indebtedness on and after the Hurricane Acquisition Closing Date, the greatest of (including Permitted Debtx) that is contractually subordinated in right $600,000,000, (y) 1.25% of payment to any other Indebtedness Total Assets and (z) 10.0% of Loral Space unless such Indebtedness is also contractually subordinated in right Consolidated Cash Flow for the most recently ended Test Period (calculated on a pro forma basis); (iv) no Event of payment to the Loral Space Guaranty of the Subordinated Notes on substantially identical terms; provided, however, that no Indebtedness of Loral Space shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of Loral Space solely by virtue of being unsecured.
(d) For purposes of determining compliance with this Section 4.05, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (10) of paragraph (b) of this Section 4.05, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.05, Loral Space shall be permitted to classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.05.Default shall
Appears in 1 contract
Sources: Credit Agreement (NRG Energy, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space shall not, and shall not permit any of its Restricted Subsidiaries to, directly Directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, US-DOCS\155682452.9 US-DOCS\155682452.9 contingently or otherwise, with respect to (collectively, "“incur"”) any Indebtedness (including Acquired Debt), and Loral Space the Borrowers shall not issue any Disqualified Stock and shall not permit any of its their Restricted Subsidiaries to issue any shares of Preferred Stockpreferred stock; provided, however, that Loral Space or any Restricted Subsidiary the Borrowers may incur Indebtedness (including Acquired Debt), and Loral Space may ) or issue Disqualified Stock, and any of their respective Restricted Subsidiary Subsidiaries may incur Indebtedness (including Acquired Debt) or issue Preferred Stockpreferred stock, if, after giving effect so long as the Fixed Charge Coverage Ratio is equal to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or Preferred Stock and the application of the proceeds thereof, no Loral Space Default would occur as a consequence of such incurrence or issuance or be continuing following such incurrence or issuance and either (1) the Consolidated Leverage Ratio of Loral Space would be less greater than 5.0 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of 2.00:1.00 for the most recent available quarterly or annual balance sheet is less than 2.0 to 1.0recently ended Test Period (calculated on a pro forma basis).
(b) Nothing contained in paragraph (aThe provisions of Section 6.01(a) of this Section 4.05 shall not prohibit the incurrence of any of the following items of Indebtedness (collectively, "“Permitted Debt"”):
(1i) (A) the incurrence of Indebtedness and Letters of Credit hereunder and under the other Loan Documents (other than any Indebtedness and Letters of Credit arising from New Commitments pursuant to and in accordance with Section 2.24) and (B) the incurrence by Loral Space the Borrowers, any Subsidiary Guarantor and its Restricted Subsidiaries any Excluded Subsidiary pursuant to and in accordance with clause (c) of additional the definition thereof (and the guarantee thereof by the Borrowers, the Subsidiary Guarantors and/or any Excluded Subsidiary pursuant to and in accordance with clause (c) of the definition thereof) of Indebtedness and letters of credit under other Credit Facilities and Indebtedness and Letters of Credit arising from New Commitments pursuant to Credit Facilities and in accordance with Section 2.24 in an aggregate principal amount at any one time outstanding under this clause (1i)(B) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Parent Borrower and its Restricted Subsidiaries thereunder) not to exceed the difference between (x) the greater of (I) $850 million as 10,930,250,000 and (II) 42% of Total Assets and (y) the aggregate principal amount at such date of incurrence time outstanding under clause (i)(A) above less the aggregate amount of all repayments, optional or mandatory, of the principal of any term Indebtedness under a Credit Facility that have been made by the Parent Borrower or any of its Restricted Subsidiaries since the Issue Date with the Net Proceeds of Asset Sales applied (other than Excluded Proceeds) and less, without duplication, the aggregate amount of all repayments or commitment reductions with respect to repay term Indebtedness outstanding any revolving credit borrowings under one a Credit Facility that have been made by the Parent Borrower or more Credit Facilities pursuant to clause any of its Restricted Subsidiaries since the Issue Date as a result of the application of the Net Proceeds of Asset Sales (1other than Excluded Proceeds), in each case in accordance with Sections 2.13(b) of paragraph and 6.04 (b) of excluding temporary reductions in revolving credit borrowings as contemplated by Section 4.146.04);
(2ii) the incurrence by Loral Space the Parent Borrower and its Restricted Subsidiaries of the Existing Indebtedness;
(3iii) the incurrence by Loral Space the Borrowers of Indebtedness represented by the Subordinated Senior Notes and Loral Space's 9 1/2% the Senior Subordinated Secured Notes due 2006issued on or prior to the Eighth Amendment Effective Date (or, solely with respect to the Senior Secured First Lien Notes issued by the Borrowers in connection with the consummation of the Jetson Acquisition referred to in the definition of “Senior Secured Notes”, on or prior to the Jetson Acquisition Closing Date) and the related Guarantees thereof by the Subsidiary Guarantors and any Excluded Subsidiary pursuant to and in accordance with clause (c) of the definition thereof;
(4) the issuance by a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt); provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this clause (4);
(5iv) the incurrence by Loral Space the Parent Borrower or any of its Restricted Subsidiaries of 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 or lease of property (real or personal), plant or equipment used or useful in the business of the Parent Borrower or any of its Restricted Subsidiaries or incurred within 180 days thereafter, in an aggregate principal amount, including all Permitted Refinancing US-DOCS\155682452.9 Indebtedness incurred to refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (iv), in an aggregate outstanding principal amount not to exceed as of any date of US-DOCS\155682452.9 incurrence the greatest of (x) $1,800,000,000, (y) 7.0% of Total Assets and (z) 55.0% of Consolidated Cash Flow for the most recently ended Test Period (the “Non-Ratio Based Purchase Money Basket”); provided that, the Parent Borrower or any Restricted Subsidiary may incur additional amounts under this clause (iv) (without regard to, and at any time prior to the utilization of amounts under, the Non-Ratio Based Purchase Money Basket) in an unlimited amount long as the Consolidated Total Net Leverage Ratio does not exceed 3.00:1.00 for the most recently ended Test Period (calculated on a pro forma basis).
(v) the incurrence by the Parent Borrower or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance refinance, replace, defease or replace discharge Indebtedness (other than intercompany Indebtedness)that that was permitted by this Guaranty Agreement to be incurred under paragraph (aSection 6.01(a) of this Section 4.05 or clauses (2Sections 6.01(b)(ii), (36.01(b)(iii), 6.01(b)(iv), 6.01(b)(v), 6.01(b)(vi), 6.01(b)(xv), 6.01(b)(xvi), 6.01(b)(xvii), 6.01(b)(xviii), 6.01(b)(xix), 6.01(b)(xxii), 6.01(b)(xxiii), 6.01(b)(xxiv), 6.01(b)(xxv) or this clause (5) of this paragraph (band 6.01(b)(xxvi);
(6vi) the incurrence by Loral Space the Parent Borrower or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Loral Space the Parent Borrower and any of its Restricted Subsidiaries; provided, however, that:
(A1) if Loral Space any Borrower or Subsidiary Guarantor is the obligor on such IndebtednessIndebtedness and the payee is not a Borrower or Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to this Guaranty of the Subordinated NotesGuaranteed Obligations; and
(B2) (iA) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space the Parent Borrower or a Restricted Subsidiary thereof and (iiB) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space the Parent Borrower or a Restricted Subsidiary thereof shall Subsidiary; will be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space the Parent Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6vi);
(7vii) the issuance by any of the Parent Borrower’s Restricted Subsidiaries to the Parent Borrower or to any of its Restricted Subsidiaries of shares of preferred stock; provided, however, that:
(1) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Parent Borrower or a Restricted Subsidiary; and
(2) any sale or other transfer of any such preferred stock to a Person that is not either the Parent Borrower or a Restricted Subsidiary; will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (vii);
(viii) the incurrence by Loral Space the Parent Borrower or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk or currency exchange rate riskObligations;
(8) ix) the accrual of interest, Guarantee by (i) the accretion Borrowers or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of the same class Subsidiary Guarantors of Disqualified Stock Indebtedness of the Borrowers or Preferred Stock, as the case may be, will not be deemed a Subsidiary Guarantor that was permitted to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes incurred by another US-DOCS\155682452.9 US-DOCS\155682452.9 provision of this Section 4.056.01; (ii) any of the Excluded Project Subsidiaries of Indebtedness of any other Excluded Project Subsidiary; and (iii) any of the Excluded Foreign Subsidiaries of Indebtedness of any other Excluded Foreign Subsidiary; provided that, if the Indebtedness being guaranteed is subordinated to or pari passu with the Guaranteed Obligations, then the guarantee shall be subordinated to the same extent as the Indebtedness guaranteed;
(9x) the incurrence by Loral Space the Parent Borrower 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 (except in the case of daylight overdrafts) inadvertently drawn against insufficient funds in the ordinary course of business, so long as such Indebtedness is covered within five Business Days;
(xi) the incurrence by the Parent Borrower or any of its Restricted Subsidiaries of Indebtedness in respect of (i) workers’ compensation claims, self-insurance obligations, bankers’ acceptance and (ii) performance and surety bonds provided by the Parent Borrower or a Restricted Subsidiary in the ordinary course of business;
(xii) the incurrence of Non-Recourse Debt by any Excluded Project Subsidiary, and any Non-Recourse Guarantee in respect thereof;
(xiii) the incurrence of Indebtedness arising (or deemed to be arising) from agreements of the Parent Borrower or any Restricted Subsidiary providing for indemnification, earn-outs, seller notes, adjustment of purchase price or any similar obligations, in each case, incurred or assumed in connection with any acquisition or Investment or the disposition of any business, assets or Equity Interests of any Subsidiary; provided that, the aggregate maximum liability associated with such provisions may not exceed the gross proceeds (including non-cash proceeds) of such disposition;
(xiv) the incurrence by the Parent Borrower or any Restricted Subsidiary of Indebtedness represented by letters of credit, guarantees or other similar instruments supporting Hedging Obligations of the Parent Borrower or any of its Restricted Subsidiaries (other than Excluded Subsidiaries) permitted to be incurred by this Agreement;
(xv) Indebtedness, Disqualified Stock or preferred stock of Persons or assets that are acquired by the Parent Borrower or any Restricted Subsidiary or merged into the Parent Borrower or a Restricted Subsidiary in accordance with the terms of this Agreement; provided that, such Indebtedness, Disqualified Stock or preferred stock is not incurred in contemplation of such acquisition or merger; and provided, further, that after giving effect to such acquisition or merger, either:
(1) the Borrowers would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 6.01(a); or
(2) the Fixed Charge Coverage Ratio would be greater than immediately prior to such acquisition or merger;
(xvi) Environmental CapEx Debt; provided that, prior to the incurrence of any Environmental CapEx Debt, the Parent Borrower shall deliver to the Administrative Agent an Officer’s Certificate designating such Indebtedness as Environmental CapEx Debt;
(xvii) Indebtedness incurred to finance Necessary Capital Expenditures; provided that, prior to the incurrence of any Indebtedness to finance Necessary Capital Expenditures, the Parent Borrower US-DOCS\155682452.9 US-DOCS\155682452.9 shall deliver to the Administrative Agent an Officer’s Certificate designating such Indebtedness as Necessary CapEx Debt;
(xviii) Indebtedness of the Parent Borrower or any Restricted Subsidiary consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(xix) the incurrence by the Parent Borrower or any of its Restricted Subsidiaries of Contribution Indebtedness;
(xx) the incurrence by the Parent Borrower and/or any of its Restricted Subsidiaries of Indebtedness that constitutes a Permitted Tax Lease;
(xxi) the issuance of Third Party Securities by a Securitization Vehicle and the incurrence of Securitization Related Indebtedness in an aggregate outstanding principal amount not to exceed as of any date of issuance the greatest of (x) $2,500,000,000 (y) 10% of Total Assets and (z) 80.0% of Consolidated Cash Flow for the most recently ended Test Period, and to the extent constituting Indebtedness, any Standard Securitization Undertaking relating thereto;
(xxii) the incurrence, issuance or assumption by the Parent Borrower and/or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding), including all Permitted Refinancing Indebtedness incurred to refund, refinance refinance, replace, defease or replace discharge any Indebtedness incurred pursuant to this clause (9xxii), in an aggregate outstanding principal amount not to exceed as of any date of incurrence, issuance or assumption the greatest of (x) $50 million1,300,000,000, (y) 5.0% of Total Assets and (z) 40.0% of Consolidated Cash Flow for the most recently ended Test Period; orprovided that, the amount of Indebtedness permitted to be incurred, issued or assumed pursuant to this clause (xxii) shall be reduced on a dollar-for-dollar basis by the amount of Indebtedness incurred in reliance on the Reallocated Amount;
(10xxiii) the incurrence by a Borrower and/or any of its Restricted Subsidiaries of Guarantees senior or subordinated notes (including notes issued in a public offering, Rule 144A or other private placement or bridge financing in lieu of Indebtedness the foregoing) or senior or subordinated loans (and/or commitments in respect of Loral Space any of the foregoing) issued or incurred in lieu of New Commitments (such notes or loans, “Incremental Equivalent Debt”); provided that, (i) the aggregate outstanding principal amount (or committed amount, if applicable) of all Incremental Equivalent Debt shall not exceed the Maximum Incremental Amount less the aggregate principal amount of New Commitments (and loans made pursuant to such New Commitments) established pursuant to Section 2.24, (ii) to the extent any Incremental Equivalent Debt is secured by the Collateral, it shall be secured only on a pari passu or junior basis with the Liens securing the Obligations and be subject to a customary intercreditor agreement reasonably acceptable to the Administrative Agent and the Parent Borrower, (iii) the aggregate outstanding principal amount of Incremental Equivalent Debt that is guaranteed by any Restricted Subsidiary that is not subordinated a Loan Party or secured by assets other than the Collateral (other than cash collateral or letters of credit, which may be used as exclusive security) shall not exceed as of any date of incurrence or issuance the greatest of (x) $300,000,000, (y) 1.25% of Total Assets and (z) 10.0% of Consolidated Cash Flow for the most recently ended Test Period; (iv) no Event of Default shall immediately before or immediately after giving effect to the Guaranty incurrence of such Incremental Equivalent Debt (or, if the proceeds of such Incremental Equivalent Debt are used to finance a Limited Condition Transaction, no Specified Event of Default existing on such Increased Amount Date immediately before or immediately after giving effect to the incurrence of such Incremental Equivalent Debt, (v) the covenants and defaults applicable to such Incremental Equivalent Debt (excluding pricing, fees, rate floors, maturity, amortization or redemption terms and except as otherwise set forth herein or in the definitive US-DOCS\155682452.9 US-DOCS\155682452.9 documentation therefor), other than such covenants and defaults that (x) are applicable only after the Maturity Date of the Subordinated Notes.
then-existing Term Loans and (cy) Loral Space shall not incur any Indebtedness are conformed (including Permitted Debtor added) that is contractually subordinated in right of payment to any other Indebtedness of Loral Space unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty Loan Documents for the benefit of the Subordinated Notes on substantially identical terms; provided, however, that no Indebtedness of Loral Space shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of Loral Space solely by virtue of being unsecured.
(d) For purposes of determining compliance with this Section 4.05, in the event that an item of proposed Indebtedness meets the criteria of more than one Lenders of the categories then-existing Term Loans and the Administrative Agent, as applicable, pursuant to an amendment hereto (with any such amendment being effected in consultation with the Administrative Agent, but only requiring execution by the applicable Borrower) shall (A) reflect then- current market terms and conditions (taken as a whole) at the time of Permitted incurrence or issuance of such Incremental Equivalent Debt described (as reasonably determined by the Parent Borrower in clauses good faith), (1B) through not be materially more favorable to the holders of such Incremental Equivalent Debt, taken as a whole (10) of paragraph (b) of this Section 4.05as reasonably determined by the Parent Borrower in good faith), or is entitled (C) be reasonably satisfactory to be incurred pursuant to paragraph the Administrative Agent, (avi) (A) any prepayment of this Section 4.05, Loral Space shall be permitted to classify such item of Indebtedness on Incremental Equivalent Debt may provide for the date of its incurrence in any manner that complies with this Section 4.05.ability to
Appears in 1 contract
Sources: Thirteenth Amendment to Second Amended and Restated Credit Agreement (NRG Energy, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space shall The Parent will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, Incur, 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)Indebtedness, and Loral Space shall the Parent will not issue any Disqualified Stock and shall will not permit any of its the Restricted Subsidiaries to issue any shares of Preferred Stock; provided, however, that Loral Space the Parent will be entitled to Incur Indebtedness or any Restricted Subsidiary may incur Indebtedness (including Acquired Debt), and Loral Space may issue Disqualified Stock, Stock and any Restricted Subsidiary may will be entitled to Incur Indebtedness or issue Preferred Stock, Stock if, on the date of such Incurrence or issuance and after giving effect to thereto on a pro forma basis, the incurrence of such Indebtedness or the issuance of such Disqualified Stock or Preferred Stock and the application of the proceeds thereof, no Loral Space Default would occur as a consequence of such incurrence or issuance or be continuing following such incurrence or issuance and either (1) the Consolidated Leverage Fixed Charge Coverage Ratio of Loral Space would be less than 5.0 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of the most recent available quarterly or annual balance sheet is less than at least 2.0 to 1.0.
(b) Nothing contained in paragraph (a) of this Notwithstanding Section 4.05 shall prohibit 4.09(a), the incurrence of Parent and the Restricted Subsidiaries will be entitled to Incur any or all of the following items of Indebtedness (collectively, "“Permitted Debt"”):
(1) the incurrence by Loral Space and its Restricted Subsidiaries of additional Indebtedness and letters of credit Incurred pursuant to the Credit Facilities in an Agreement; provided, however, that, immediately after giving effect to any such Incurrence, the aggregate principal amount at any one time outstanding of all Indebtedness Incurred under this clause (1) and then outstanding does not to exceed $850 million as of such date of incurrence less 5.6 billion; provided, that (i) the aggregate amount of all Net Proceeds of Asset Sales applied to repay term Parent or the Restricted Subsidiaries can Incur additional Secured Indebtedness outstanding under one or more Credit Facilities pursuant to this clause (1) of paragraph if, after giving pro forma effect to such Incurrence, the Consolidated Secured Debt Ratio would be no greater than 3.5 to 1.0 and (bii) of Section 4.14the Parent or the Restricted Subsidiaries can Incur additional Pari Passu Lien Indebtedness under this clause (1) if, after giving pro forma effect to such Incurrence, the Consolidated First Lien Secured Debt Ratio would be no greater than 3.0 to 1.0;
(2) the incurrence by Loral Space Indebtedness owed to and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by Loral Space of Indebtedness represented held by the Subordinated Notes and Loral Space's 9 1/2% Senior Subordinated Notes due 2006;
(4) the issuance by Parent or a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt)Restricted Subsidiary; provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this clause (4);
(5) the incurrence by Loral Space or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness)that was permitted by this Guaranty to be incurred under paragraph (a) of this Section 4.05 or clauses (2), (3) or this clause (5) of this paragraph (b);
(6) the incurrence by Loral Space or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Loral Space and any of its Restricted Subsidiaries; provided, however, that:
(A) if Loral Space is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to all Obligations with respect to this Guaranty of the Subordinated Notes; and
(B) (i) any subsequent issuance or transfer of Equity Interests any Capital Stock that results in any such Indebtedness being held by a Person other than Loral Space the Parent or a Restricted Subsidiary thereof and (ii) any sale or other subsequent transfer of any such Indebtedness (other than to a Person that is not either Loral Space the Parent or a Restricted Subsidiary thereof Subsidiary) shall be deemed, in each case, to constitute an incurrence the Incurrence of such Indebtedness by Loral Space or such Restricted Subsidiary, as the case may be, obligor thereon that was not permitted by this clause (2);
(3) the Notes (including any Note Guarantee but excluding any Additional Notes);
(4) Indebtedness that is outstanding on the Issue Date (other than Indebtedness described in clause (1), (2) or (3) above);
(5) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Subsidiary was acquired by the Parent (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by the Parent); provided, however, that on the date of such acquisition and after giving effect thereto on a pro forma basis, either (i) the Parent would be entitled to Incur at least $1.00 of additional Indebtedness pursuant to Section 4.09(a) or (ii) the Fixed Charge Coverage Ratio (A) would be at least 1.75 to 1.0 and (B) would be equal to or greater than such Fixed Charge Coverage Ratio immediately prior to such acquisition;
(6) Permitted Refinancing Indebtedness in respect of Indebtedness Incurred pursuant to Section 4.09(a) or Sections 4.09(b)(3), (4), (5), (22) or this clause (6);
(7) Swap Obligations directly related to Indebtedness permitted to be Incurred by the incurrence Parent and the Restricted Subsidiaries pursuant to this Indenture or entered into in the ordinary course of business and not for speculative purposes;
(8) obligations in respect of (i) worker’s compensation and self-insurance and performance, bid, stay, customs, appeal, replevin and surety bonds and performance and completion guarantees and letters of credit supporting such obligations provided by Loral Space the Parent or any Restricted Subsidiary and (ii) trade letters of credit and deferred compensation, severance, pension and health and welfare retirement benefits or the equivalent to current or former officers, directors and employees of the Parent or any of its Restricted Subsidiaries Subsidiaries, in each case Incurred in the ordinary course of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk or currency exchange rate riskbusiness;
(8) 9) Indebtedness arising from the accrual honoring by a bank or other financial institution of interesta check, draft, credit card, purchase card or similar instrument drawn against insufficient funds and similar liabilities in the accretion ordinary course of business or amortization consistent with industry practice or other treasury, depositary and cash management services in the ordinary course of original issue discountbusiness or consistent with industry practice; provided that (i) such Indebtedness (other than credit or purchase cards) is extinguished within ten business days of notification to the Issuer of its incurrence and (ii) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its Incurrence;
(10) Indebtedness consisting of any Guarantee by (i) the Issuer or a Guarantor of Indebtedness or other Obligations of the Parent or any of the Restricted Subsidiaries, (ii) a Foreign Restricted Subsidiary of Indebtedness or other Obligations of another Foreign Restricted Subsidiary or (iii) a Non-Guarantor Subsidiary (other than the payment Issuer) of interest Indebtedness or other Obligations of another Non-Guarantor Subsidiary (other than the Issuer), in each case so long as the Incurrence of such guaranteed Indebtedness or other obligations by the Parent or such Restricted Subsidiary is permitted under the terms of this Indenture; provided, that, if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the Guarantee must be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(11) (i) Capital Lease Obligations and (ii) Attributable Debt, and Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount on the date of Incurrence that, when taken together with the principal amount of all other Indebtedness then outstanding and Incurred pursuant to this clause (11), does not exceed the greater of $200.0 million or 1.0% of Total Assets;
(12) Indebtedness of Non-Guarantor Subsidiaries (other than the Issuer) and Foreign Restricted Subsidiaries in an aggregate principal amount on the date of Incurrence that, when taken together with the principal amount of all other Indebtedness then outstanding and Incurred pursuant to this clause (12), does not exceed the greater of $750.0 million or 5.0% of Total Assets;
(13) Indebtedness Incurred after the Issue Date in respect of Purchase Money Indebtedness and Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount on the date of Incurrence that, when taken together with the principal amount of all other Indebtedness then outstanding and Incurred pursuant to this clause (13), does not exceed the greater of $450.0 million or 3.0% of Total Assets;
(14) Indebtedness of the Parent or any of the Restricted Subsidiaries consisting of (i) the financing of insurance premiums with the providers of such insurance or their affiliates, (ii) take-or-pay obligations contained in supply agreements or (iii) customer deposits and advance payments received from customers for goods and services purchased, in each case, in the ordinary course of business;
(15) Indebtedness of the Parent or any of the Restricted Subsidiaries supported by a letter of credit issued pursuant to the Credit Agreement in a principal amount not in excess of the stated amount of such letter of credit;
(16) Indebtedness in an aggregate amount not to exceed the foreign currency equivalent of the greater of $400.0 million or 2.5% of Total Assets in respect of letters of credit denominated in currencies other than U.S. dollars;
(17) Foreign Jurisdiction Deposits;
(18) Indebtedness consisting of guarantees of indebtedness or other obligations of joint ventures permitted under clause (19)(a) of the definition of “Permitted Investments;”
(19) Indebtedness Incurred in connection with judgments, decrees, attachments or awards that do not constitute an Event of Default under Section 6.01(6);
(20) Indebtedness in the form of additional Indebtedness with the same terms(i) guarantees of loans and advances to officers, directors, agents, consultants and employees, in an aggregate amount not to exceed $20.0 million at any one time outstanding, and the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares (ii) reimbursements owed to officers, directors, agents, consultants and employees of the same class of Disqualified Stock or Preferred Stock, as the case may be, will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.05;
(9) the incurrence by Loral Space Parent or any of its Restricted Subsidiaries Subsidiaries;
(21) Indebtedness consisting of obligations to make payments to current or former officers, directors and employees of the Parent or any of its Subsidiaries, their respective estates, spouses or former spouses with respect to the cancellation, purchase or redemption of Equity Interests of the Parent or any of its Subsidiaries, to the extent permitted under Section 4.07(b)(5);
(22) Indebtedness of the Issuer or a Guarantor incurred in connection with or in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate, the acquisition by the Issuer or such Guarantor of property used or useful in a Permitted Business (including a Product) (whether through the direct purchase of assets or the purchase of Capital Stock of, or merger or consolidation with, any Person owning such assets); provided, however, on the date of such Incurrence and after giving effect thereto on a pro forma basis, either (i) the Consolidated Total Debt Ratio would not be greater than 6.5 to 1.0 or (ii) the Fixed Charge Coverage Ratio (A) would permit to incur at least $1.00 of additional Indebtedness in an aggregate principal amount or (B) would be equal to or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred greater than such Fixed Charge Coverage Ratio immediately prior to refund, refinance or replace any Indebtedness incurred pursuant to this clause (9), not to exceed $50 million; orsuch Incurrence;
(1023) the incurrence by Restricted Subsidiaries of Guarantees of Indebtedness of Loral Space or any Restricted Subsidiary that is not subordinated to the Guaranty of the Subordinated Notes.
(c) Loral Space shall not incur any Indebtedness (including Permitted Non-Recourse Debt) that is contractually subordinated in right of payment to any other Indebtedness of Loral Space unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty of the Subordinated Notes on substantially identical terms; provided, however, that no the aggregate principal amount of any such Indebtedness, when taken together with all other Indebtedness Incurred pursuant to this clause (23) and then outstanding, does not exceed the greater of $400.0 million or 2.5% of Total Assets;
(24) Indebtedness consisting of obligations under any Permitted Convertible Indebtedness Call Transaction;
(25) Indebtedness of Loral Space shall be deemed to be contractually subordinated in right the Parent or of payment to any other Indebtedness of Loral Space solely by virtue of being unsecured.
(d) For purposes of determining compliance with this Section 4.05, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described Restricted Subsidiaries in clauses (1) through (10) of paragraph (b) of this Section 4.05, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.05, Loral Space shall be permitted to classify such item of Indebtedness an aggregate principal amount on the date of its incurrence in any manner that complies Incurrence that, when taken together with all other Indebtedness of the Parent and the Restricted Subsidiaries then outstanding and Incurred pursuant to this Section 4.05.clause (25), does not exceed the greater of $750.0 million or
Appears in 1 contract
Sources: Indenture (Endo International PLC)
Incurrence of Indebtedness and Issuance of Preferred Stock. On or after the date of this Indenture (ai) Loral Space shall Casella will not, and shall will 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") incur any Indebtedness (including Acquired Debt), and Loral Space shall (ii) Casella will not issue any Disqualified Capital Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of Preferred Stock; provided, however, provided that Loral Space Casella or any Restricted Subsidiary Guarantor may incur Indebtedness (including Acquired Debt), and Loral Space Casella may issue Disqualified Capital Stock, and any Restricted Subsidiary may issue Preferred Stock, if, after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or Preferred Stock and the application of the proceeds thereof, no Loral Space Default would occur as a consequence of such incurrence or issuance or be continuing following such incurrence or issuance and either (1) if the Consolidated Leverage Fixed Charge Coverage Ratio of Loral Space would be less than 5.0 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of the most recent available quarterly or annual balance sheet is less than at least 2.0 to 1.0.
1.0 (b) Nothing contained in this proviso, the “Coverage Ratio Exception”). The first paragraph (a) of this Section 4.05 shall 4.10 will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "“Permitted Debt"”):
(1) the incurrence by Loral Space and its Restricted Subsidiaries of additional Indebtedness and letters of credit pursuant under the Senior Credit Facility (with letters of credit being deemed to Credit Facilities have a principal amount equal to the maximum potential liability of Casella and its Restricted Subsidiaries thereunder) in an aggregate principal amount at any one time outstanding under this clause (1) not to exceed $850 350.0 million as of such date of incurrence less the aggregate amount of all Net Proceeds of Asset Sales (other than up to $75.0 million of Net Proceeds from Asset Sales of Specified Assets) applied by Casella or any of its Subsidiaries since the date of this Indenture to repay term Indebtedness outstanding under one or more the Senior Credit Facilities Facility pursuant to clause (1) of the third paragraph (b) of Section 4.144.13;
(2) the incurrence by Loral Space Notes issued on the Issue Date and its Restricted Subsidiaries up to $50.0 million aggregate principal amount of Additional Notes issued under this Indenture and the Existing IndebtednessSubsidiary Guarantees thereof;
(a) Capital Lease Obligations, (b) Purchase Money Obligations and (c) industrial revenue bonds or solid waste disposal bonds issued by or at the request of Casella or any Restricted Subsidiary, and Indebtedness funded by such bonds, and Permitted Refinancing Indebtedness of any of the foregoing, in an aggregate amount under this clause (3) the incurrence by Loral Space of Indebtedness represented by the Subordinated Notes and Loral Space's 9 1/2% Senior Subordinated Notes due 2006not to exceed $50.0 million at any time outstanding;
(4) the issuance by a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt); provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this clause (4);
(5) the incurrence by Loral Space or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refundrefinance, refinance (x) Existing Indebtedness or replace (y) Indebtedness (other than intercompany Indebtedness)that was permitted by this Guaranty to be incurred under paragraph the Coverage Ratio Exception or clause (a2) of this Section 4.05 or clauses (2), (3) paragraph or this clause (5) of this paragraph (b4);
(65) the incurrence Indebtedness owed by Loral Space Casella or any of its Restricted Subsidiaries of intercompany Indebtedness between to Casella or among Loral Space and any of its Restricted Subsidiaries; provided, however, provided that:
(Aa) if Loral Space Casella or any Guarantor is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to this Guaranty the Notes, in the case of Casella, or the Subordinated NotesSubsidiary Guarantee of such Guarantor, in the case of a Guarantor; and
(Bb) (ix) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space Casella or a Wholly Owned Restricted Subsidiary thereof and (iiy) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space Casella or a Wholly Owned Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space Casella or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (5);
(6)) Hedging Obligations with respect to (a) interest rates on any Indebtedness that is permitted by the terms of this Indenture to be outstanding, (b) foreign currency exchange rates, (c) prices of recycled paper, fiber, aluminum, tin, glass, rubber, plastics or other recycled products or (d) the price of fuel required for the operations of the businesses of Casella and its Restricted Subsidiaries; provided that (i) any such Hedging Obligation of the type described in clauses (b) through (d) will be permitted by this clause (6) only if it was entered into to protect Casella and its Restricted Subsidiaries from fluctuations in foreign currency exchange rates, the prices of recycled paper, fiber, aluminum, tin, glass, rubber, plastics or other recycled products or fuel covered by such agreements, as applicable, and not for speculative purposes, (ii) in the case of Hedging Obligations of the type described in clause (a) above, any such Hedging Obligations will be permitted by this clause (6) only to the extent the notional principal amount of such Hedging Obligations, when incurred, does not exceed the principal amount of the Indebtedness to which such Hedging Obligations relate and (iii) in the case of Hedging Obligations of the type described in clause (b) above, such Hedging Obligations do not increase the Indebtedness of Casella and its Restricted Subsidiaries outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder;
(7) obligations in the incurrence ordinary course of business in respect of workers’ compensation claims, self-insurance obligations, performance, surety and similar bonds and completion bonds and bid guarantees with respect to the assets or business of Casella or any of its Restricted Subsidiaries;
(8) (x) the Guarantee by Loral Space Casella or any Guarantor of Indebtedness of Casella or a Guarantor and (y) the guarantee by any Restricted Subsidiary that is not a Guarantor of Indebtedness of any other Restricted Subsidiary that is not a Guarantor; provided that, in each case, the Indebtedness being guaranteed is permitted to be incurred by another provision of this Indenture;
(9) indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business or assets of Casella or any of its Restricted Subsidiaries or Capital Stock of Hedging Obligations any of its Restricted Subsidiaries; provided that are incurred for the purpose maximum aggregate liability in respect of fixing or hedging interest rate risk or currency exchange rate riskall of such obligations outstanding under this clause (9) shall at no time exceed the gross proceeds including non-cash proceeds (the fair market value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by Casella and its Restricted Subsidiaries in connection with such dispositions;
(8) 10) Acquired Debt incurred by the accrual debtor prior to the time that the debtor thereunder was acquired by or merged into Casella or any of interestits Subsidiaries, or prior to the accretion time that the related asset was acquired by Casella or amortization any of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same termsits Subsidiaries, and the payment of dividends on Disqualified Stock was not incurred in connection with, or Preferred Stock in the form of additional shares of the same class of Disqualified Stock contemplation of, such acquisition or Preferred Stockmerger, as the case may beand Permitted Refinancing Indebtedness thereof, will in an aggregate amount under this clause (10) not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.05exceed $10.0 million at any time outstanding;
(911) Indebtedness arising from the incurrence honoring by Loral Space a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds; provided that such Indebtedness is extinguished within five business days of incurrence; and
(12) additional Indebtedness in an aggregate amount under this clause (12) not to exceed $20.0 million at any time outstanding. Notwithstanding any other provision in this Section 4.10, the maximum amount of Indebtedness that Casella or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred may incur pursuant to this clause (9), not to exceed $50 million; or
(10) the incurrence by Restricted Subsidiaries of Guarantees of Indebtedness of Loral Space or any Restricted Subsidiary that is not subordinated to the Guaranty of the Subordinated Notes.
(c) Loral Space covenant shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of Loral Space unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty of the Subordinated Notes on substantially identical terms; provided, however, that no Indebtedness of Loral Space shall be deemed to be contractually subordinated exceeded as a result of fluctuations in right exchange rates of payment currencies. The outstanding principal amount of any particular Indebtedness shall be counted only once and any obligation arising under any Guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness shall be disregarded, so long as the obligor is permitted to any other Indebtedness of Loral Space solely by virtue of being unsecured.
(d) incur such obligation. For purposes of determining compliance with this Section 4.054.10, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (1012) of paragraph (b) of this Section 4.05above, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.05the Coverage Ratio Exception, Loral Space shall Casella will be permitted to divide and classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.05covenant (provided that all Indebtedness outstanding under the Senior Credit Facility on the Issue Date shall be deemed to have been incurred pursuant to clause (1) of the preceding paragraph).
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space The Issuer 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") any Indebtedness (including Acquired Debt), and Loral Space the Issuer shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of Preferred Stock; provided, however, that Loral Space the Issuer or any Restricted Subsidiary may incur Indebtedness (including Acquired Debt), and Loral Space the Issuer may issue Disqualified Stock, and any Restricted Subsidiary may issue Preferred Stock, if, after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or Preferred Stock and the application of the proceeds thereof, no Loral Space Default would occur as a consequence of such incurrence or issuance or be continuing following such incurrence or issuance and either (1) the Consolidated Leverage Ratio of Loral Space the Issuer would be less than 5.0 to 1.0, or (2) Loral Spacethe Issuer's Consolidated Capital Ratio as of the most recent available quarterly or annual balance sheet is less than 2.0 to 1.0.
(b) Nothing contained in paragraph (a) of this Section 4.05 shall prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(1) the incurrence by Loral Space the Issuer and its Restricted Subsidiaries of additional Indebtedness and letters of credit pursuant to Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (1) not to exceed $850 million as of such date of incurrence less the aggregate amount of all Net Proceeds of Asset Sales applied to repay term Indebtedness outstanding under one or more Credit Facilities pursuant to clause (1) of paragraph (b) of Section 4.14;
(2) the incurrence by Loral Space the Issuer and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by Loral Space the Issuer of Indebtedness represented by the Subordinated Notes and Loral Space's 9 1/2% Senior Subordinated Notes due 2006Securities to be issued on the Issue Date;
(4) the issuance by a Subsidiary of Preferred Stock or the incurrence by Loral Spacethe Issuer's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt); provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space the Issuer that was not permitted by this clause (4);
(5) the incurrence by Loral Space the Issuer or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness)that was permitted by this Guaranty to be incurred under paragraph (a) of this Section 4.05 or clauses (2Indebtedness), (3) or this clause (5) of this paragraph (b);
(6) the incurrence by Loral Space or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Loral Space and any of its Restricted Subsidiaries; provided, however, that:
(A) if Loral Space is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to all Obligations with respect to this Guaranty of the Subordinated Notes; and
(B) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space or a Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);
(7) the incurrence by Loral Space or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk or currency exchange rate risk;
(8) 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, and the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of the same class of Disqualified Stock or Preferred Stock, as the case may be, will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.05;
(9) the incurrence by Loral Space or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (9), not to exceed $50 million; or
(10) the incurrence by Restricted Subsidiaries of Guarantees of Indebtedness of Loral Space or any Restricted Subsidiary that is not subordinated to the Guaranty of the Subordinated Notes.
(c) Loral Space shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of Loral Space unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty of the Subordinated Notes on substantially identical terms; provided, however, that no Indebtedness of Loral Space shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of Loral Space solely by virtue of being unsecured.
(d) For purposes of determining compliance with this Section 4.05, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (10) of paragraph (b) of this Section 4.05, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.05, Loral Space shall be permitted to classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.05.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space shall The Parent Guarantor will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create, issue, incur, issue, assume, guarantee or otherwise in any manner become directly or indirectly liableliable with respect to or otherwise become responsible for, contingently or otherwise, with respect to the payment of (individually and collectively, "incur") to “Incur” or, as appropriate, an “Incurrence”), any Indebtedness Debt (including any Acquired Debt); provided that the Issuer and any Guarantor will be permitted to Incur Debt (including Acquired Debt), ) if at the time of such Incurrence and Loral Space shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of Preferred Stock; provided, however, that Loral Space or any Restricted Subsidiary may incur Indebtedness (including Acquired Debt), and Loral Space may issue Disqualified Stock, and any Restricted Subsidiary may issue Preferred Stock, if, after giving effect to the incurrence Incurrence of such Indebtedness or the issuance of such Disqualified Stock or Preferred Stock Debt and the application of the proceeds thereof, no Loral Space Default would occur as on a consequence pro forma basis, the Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which internal financial statements are available immediately preceding the Incurrence of such incurrence or issuance or be continuing following such incurrence or issuance and either (1) the Consolidated Leverage Ratio of Loral Space Debt, taken as one period, would be less than 5.0 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of the most recent available quarterly or annual balance sheet is less greater than 2.0 to 1.0.
(b) Nothing contained in paragraph (a) of this This Section 4.05 shall 4.09 will not, however, prohibit the incurrence of any of the following items of Indebtedness (collectively, "“Permitted Debt"”):
(1) the incurrence Incurrence by Loral Space and its the Parent Guarantor or any Restricted Subsidiaries Subsidiary of additional Indebtedness and letters of credit pursuant to Debt under Credit Facilities in an aggregate principal amount at any one time outstanding not to exceed an amount equal to (i) US$1,030,000,000 (or the Dollar Equivalent thereof), plus (ii) in the case of any refinancing of any Debt permitted under this clause (1) not to exceed $850 million as of such date of incurrence less ), the aggregate amount of all Net Proceeds of Asset Sales applied to repay term Indebtedness outstanding under one or more Credit Facilities pursuant to clause (1) of paragraph (b) of Section 4.14fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing;
(2) the incurrence Incurrence by Loral Space the Issuer of Debt pursuant to the Notes (other than Additional Notes) and its Restricted Subsidiaries the Incurrence of Debt by the Existing IndebtednessGuarantors pursuant to the Guarantees (other than Guarantees of Additional Notes);
(3) any Debt of the incurrence by Loral Space Parent Guarantor or any Restricted Subsidiary outstanding on the Issue Date (other than Debt incurred under clauses (1) and (4) of Indebtedness represented by this Section 4.09(b)), any Acquired Debt Incurred as a result of the Subordinated Notes Acquisition and Loral Space's 9 1/2% Senior Subordinated Notes due 2006any deferred consideration owed as of the Issue Date under the Meritas Transaction Agreement;
(4) the issuance Incurrence by a the Parent Guarantor or any Restricted Subsidiary of Preferred Stock intercompany Debt between the Parent Guarantor and any Restricted Subsidiary or between or among Restricted Subsidiaries; provided that:
(A) if the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt); provided, however, that if Issuer or a Guarantor is the obligor on any such Indebtedness Debt and the lender is not the Issuer or a Guarantor, it is unsecured and expressly subordinated in right of payment to the prior payment in full in cash (whether upon Stated Maturity, acceleration or otherwise) and the performance in full of its obligations under the Notes or its Guarantee, as the case may be; and
(B) (x) any disposition, pledge or transfer of any such Debt to any Person (other than a disposition, pledge or transfer to the Parent Guarantor or a Restricted Subsidiary) and (y) any transaction pursuant to which any Restricted Subsidiary that has Debt owing from the Parent Guarantor or another Restricted Subsidiary ceases to be Non-Recourse Debt of a Restricted Subsidiary, such event shall will, in each case, be deemed to constitute be an incurrence Incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was such Debt not permitted by this clause (4Section 4.09(b)(4);
(5) the incurrence Incurrence by Loral Space the Parent Guarantor or any Restricted Subsidiary of its Restricted Subsidiaries Debt represented by Capitalized Lease Obligations, mortgage financings, purchase money obligations or other Debt Incurred or assumed in connection with the acquisition, construction, improvement or development of Permitted Refinancing Indebtedness in exchange forreal or personal, movable or immovable equipment, property or assets (including the net proceeds lease or other purchase of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness)that was permitted by this Guaranty to be incurred under paragraph (a) of this Section 4.05 or clauses (2land use rights), in each case, Incurred for the purpose of financing or refinancing all or any part of the purchase price, lease expense or cost of construction, improvement or development of property, plant or equipment used in the Parent Guarantor’s or any Restricted Subsidiary’s business (3) including any related fees or expenses reasonably incurred in connection with such acquisition, construction, improvement or development), including any such purchase through the acquisition of Capital Stock of any Person that owns such real or personal, movable or immovable equipment, property or assets which will, upon acquisition, become a Restricted Subsidiary; provided that the principal amount of such Debt so Incurred when aggregated with other Debt previously Incurred in reliance on this clause (5) of this paragraph (b);
(6) the incurrence by Loral Space or together with any of its Restricted Subsidiaries of intercompany Indebtedness between or among Loral Space and any of its Restricted Subsidiaries; provided, however, that:
(A) if Loral Space is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to all Obligations with respect to this Guaranty of the Subordinated Notes; and
(B) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space or a Restricted Subsidiary refinancings thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space or a Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);
(7) the incurrence by Loral Space or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk or currency exchange rate risk;
(8) 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, and the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares of the same class of Disqualified Stock or Preferred Stock, as the case may be, will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.05;
(9) the incurrence by Loral Space or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (9), not to exceed $50 million; or
(10) the incurrence by Restricted Subsidiaries of Guarantees of Indebtedness of Loral Space or any Restricted Subsidiary that is not subordinated to the Guaranty of the Subordinated Notes.
(c) Loral Space shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of Loral Space unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty of the Subordinated Notes on substantially identical terms; provided, however, that no Indebtedness of Loral Space shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of Loral Space solely by virtue of being unsecured.
(d) For purposes of determining compliance with this Section 4.05, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (10) of paragraph (b) of this Section 4.05, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.05, Loral Space shall be permitted to classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.05.Section
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space shall The Parent will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, Incur, 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)Indebtedness, and Loral Space shall the Parent will not issue any Disqualified Stock and shall will not permit any of its the Restricted Subsidiaries to issue any shares of Preferred Stock; provided, however, that Loral Space or any Restricted Subsidiary may incur the Parent will be entitled to Incur Indebtedness (including Acquired Debt), and Loral Space may Indebtedness) or issue Disqualified Stock, Stock and any Restricted Subsidiary may will be entitled to Incur Indebtedness or issue Preferred StockStock if, on the date of such Incurrence or issuance and after giving effect thereto on a pro forma basis, the Fixed Charge Coverage Ratio would be at least 2.0 to 1.0; provided that Non-Guarantor Subsidiaries may not incur Indebtedness or issue Preferred Stock under this paragraph if, after giving pro forma effect to such Incurrence (including a pro forma application of the incurrence net proceeds therefrom), more than $60.0 million of such Indebtedness or the issuance of such Disqualified Stock or Preferred Stock and the application of the proceeds thereof, no Loral Space Default Non-Guarantor Subsidiaries incurred pursuant to this paragraph would occur as a consequence of such incurrence or issuance or then be continuing following such incurrence or issuance and either (1) the Consolidated Leverage Ratio of Loral Space would be less than 5.0 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of the most recent available quarterly or annual balance sheet is less than 2.0 to 1.0outstanding.
(b) Nothing contained in paragraph (a) of this Notwithstanding Section 4.05 shall prohibit 4.09(a), the incurrence of Parent and the Restricted Subsidiaries will be entitled to Incur any or all of the following items of Indebtedness (collectively, "“Permitted Debt"”):
(1) the incurrence by Loral Space and its Restricted Subsidiaries of additional Indebtedness and letters of credit Incurred pursuant to the Credit Facilities in an Agreement; provided, however, that, immediately after giving effect to any such Incurrence, the aggregate principal amount at any one time outstanding of all Indebtedness Incurred under this clause (1) and then outstanding does not to exceed $850 million as of such date of incurrence less 1,000.0 million; provided, that the aggregate amount of all Net Proceeds of Asset Sales applied to repay term Parent or the Restricted Subsidiaries can Incur additional Indebtedness outstanding under one or more Credit Facilities pursuant to this clause (1) if, after giving pro forma effect to such Incurrence, the Consolidated Senior Secured Debt Ratio would be no greater than 3.5 to 1.0; provided that for purposes of paragraph determining the amount of Indebtedness that may be incurred under clause (b1), all Indebtedness incurred under this clause (1) of Section 4.14shall be treated as Secured Indebtedness;
(2) the incurrence by Loral Space Indebtedness owed to and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by Loral Space of Indebtedness represented held by the Subordinated Notes and Loral Space's 9 1/2% Senior Subordinated Notes due 2006;
(4) the issuance by Parent or a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt)Restricted Subsidiary; provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this clause (4);
(5) the incurrence by Loral Space or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness)that was permitted by this Guaranty to be incurred under paragraph (a) of this Section 4.05 or clauses (2), (3) or this clause (5) of this paragraph (b);
(6) the incurrence by Loral Space or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Loral Space and any of its Restricted Subsidiaries; provided, however, that:
(A) if Loral Space is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to all Obligations with respect to this Guaranty of the Subordinated Notes; and
(B) (i) any subsequent issuance or transfer of Equity Interests any Capital Stock that results in any such Indebtedness being held by a Person other than Loral Space the Parent or a Restricted Subsidiary thereof and (iib) any sale or other subsequent transfer of any such Indebtedness (other than to a Person that is not either Loral Space the Parent or a Restricted Subsidiary thereof Subsidiary) shall be deemed, in each case, to constitute an incurrence the Incurrence of such Indebtedness by Loral Space or such Restricted Subsidiary, as the case may be, obligor thereon that was not permitted by this clause (2).
(3) the Notes (including any Note Guarantees but excluding any additional notes);
(4) Indebtedness that is outstanding on the Issue Date (other than Indebtedness described in clause (1), (2) or (3) of this Section 4.09(b));
(5) Acquired Indebtedness (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by the Parent or such Restricted Subsidiary); provided, however, that on the date of such acquisition and after giving effect thereto on a pro forma basis, either (a) the Parent would be entitled to Incur at least $1.00 of additional Indebtedness pursuant to the first paragraph of this covenant or (b) the Fixed Charge Coverage Ratio would not be less than such Fixed Charge Coverage Ratio immediately prior to such acquisition;
(6) Permitted Refinancing Indebtedness in respect of Indebtedness Incurred pursuant to Section 4.09(a) or Sections 4.09(b)(3), (4), (5), (19) of this Section 4.09 or this clause (6);
(7) Hedging Obligations directly related to Indebtedness permitted to be Incurred by the incurrence by Loral Space or any of its Parent and the Restricted Subsidiaries pursuant to this Indenture or entered into in the ordinary course of Hedging Obligations that are incurred business and not for the purpose of fixing or hedging interest rate risk or currency exchange rate riskspeculative purposes;
(8) (a) obligations in respect of worker’s compensation and self-insurance and performance, indemnity, bid, stay, customs, appeal, replevin and surety bonds, performance and completion guarantees and other similar bonds or guarantees, in each case provided by the accrual Parent or any Restricted Subsidiary in the ordinary course of interestbusiness and (b) reimbursement and indemnification obligations in respect of letters of credit, banker’s acceptances and other similar instruments issued in respect of obligations specified in clause (a) or to landlords or vendors in the ordinary course of business;
(9) Indebtedness arising from (a) the honoring by a bank or other financial institution of a check, draft, or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services in the ordinary course of business; provided, that such Indebtedness is extinguished within ten Business Days of notification to the Parent of its incurrence; (b) customer deposits and advance payments received in the ordinary course of business or consistent with past practice from customers for goods or services purchased in the ordinary course of business or consistent with past practice; and (c) Treasury Management Arrangements;
(10) Indebtedness consisting of any Guarantee by (a) the Parent or another Guarantor of Indebtedness or other Obligations of the Parent, the accretion Issuers or amortization any of original issue discountthe other Guarantors, (b) a Foreign Subsidiary of Indebtedness or other Obligations of another Foreign Subsidiary or a Non-Guarantor Subsidiary or (c) a Non-Guarantor Subsidiary of Indebtedness or other Obligations of another Non-Guarantor Subsidiary or a Foreign Subsidiary, in each case so long as the payment Incurrence of interest such guaranteed Indebtedness or other obligations by the Parent or such Restricted Subsidiary is permitted under the terms of this Indenture; provided, that, if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the Guarantee must be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(11) Capital Lease Obligations and Purchase Money Indebtedness, and Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount on the date of Incurrence that, when taken together with the principal amount of all other Indebtedness then outstanding and Incurred pursuant to this clause (11), does not exceed the greater of $22.5 million or 1.0% of Total Assets;
(12) Indebtedness of Non-Guarantor Subsidiaries and Foreign Subsidiaries in an aggregate principal amount on the date of Incurrence that, when taken together with the principal amount of all other Indebtedness then outstanding and Incurred pursuant to this clause (12), does not exceed the greater of $22.5 million or 1.0% of Total Assets;
(13) Indebtedness of the Parent or any of the Restricted Subsidiaries consisting of (a) the financing of insurance premiums with the providers of such insurance or their affiliates or (b) take-or-pay obligations contained in supply agreements, in each case, in the ordinary course of business;
(14) Indebtedness of the Parent or any of the Restricted Subsidiaries supported by a letter of credit issued pursuant to the Credit Agreement in a principal amount not in excess of the stated amount of such letter of credit;
(15) Indebtedness consisting of guarantees of indebtedness or other obligations of joint ventures permitted under clause (18) of the definition of “Permitted Investments;”
(16) Indebtedness Incurred in connection with judgments, decrees, attachments or awards that do not constitute an Event of Default under Section 6.01(5);
(17) Indebtedness in the form of (a) guarantees of loans and advances to officers, directors, consultants and employees, in an aggregate amount not to exceed $7.5 million at any one time outstanding, and (b) reimbursements owed to officers, directors, consultants and employees of the Parent, any of its Subsidiaries or the Parent’s direct or indirect parent companies;
(18) Indebtedness consisting of obligations to make payments to current or former officers, directors and employees of the Parent, any of its Subsidiaries or the Parent’s direct or indirect parent companies, their respective estates, spouses or former spouses with respect to the cancellation, purchase or redemption of Equity Interests of the Parent, any of its Subsidiaries, or any of the Parent’s direct or indirect parent companies to the extent permitted under Section 4.07(b)(4);
(19) Indebtedness of the Parent, the Issuers or another Guarantor incurred in connection with or in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate, the acquisition by the Parent, the Issuers or such Guarantor of property or license used or useful in a Permitted Business (including a Product or license to a Product) (whether through the direct purchase of assets or the purchase of Capital Stock of, or merger or consolidation with, any Person owning such assets); provided, however, on the date of such Incurrence and after giving effect thereto on a pro forma basis, either (a) the Parent would be entitled to Incur at least $1.00 of additional Indebtedness pursuant to the first paragraph of this covenant or (b) the Fixed Charge Coverage Ratio would not be less than such Fixed Charge Coverage Ratio immediately prior to such acquisition;
(20) Indebtedness consisting of obligations under any Permitted Equity Derivatives;
(21) Indebtedness issued in connection with the same termsan Investment involving a tender offer followed by a short form merger, and the payment of dividends on Disqualified Stock or Preferred Stock in the form of additional shares an intercompany note; provided that the Indebtedness relating thereto is extinguished or retired not later than three Business Days after consummation of the same class related short form merger (or such Indebtedness otherwise becomes a Permitted Investment within such time period); and
(22) Indebtedness of Disqualified Stock the Parent or Preferred Stockof any of the Restricted Subsidiaries in an aggregate principal amount on the date of Incurrence that, when taken together with all other Indebtedness of the Parent and the Restricted Subsidiaries then outstanding and Incurred pursuant to this clause (22), does not exceed the greater of $90.0 million or 2.5% of Total Assets.
(c) For purposes of determining compliance with this Section 4.09:
(1) all Indebtedness outstanding under the Credit Agreement on the Issue Date will be treated as Incurred under clause (1) of the immediately preceding paragraph;
(2) in the event that an item of Indebtedness (or any portion thereof) meets the criteria of more than one of the types of Indebtedness described in Section 4.09, the Parent, in its sole discretion, will classify such item of Indebtedness (or any portion thereof) at the time of Incurrence and will only be required to include the amount and type of such Indebtedness in Section 4.09(a) or one of the clauses of Section 4.09(b) (provided, that any Indebtedness originally classified as Incurred pursuant to any of clauses (2) through (22) of Section 4.09(b) may later be reclassified as having been Incurred pursuant to Section 4.09(a) or any other of clauses (2) through (22) of Section 4.09(b) to the extent that such reclassified Indebtedness could be Incurred pursuant to Section 4.09(a) or one of clauses (2) through (22) of Section 4.09(b), as the case may be, if it were Incurred at the time of such reclassification); and
(3) the Parent will not be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described in this Section 4.09.
(d) For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided, that, if such Indebtedness is incurred to Refinance other Indebtedness denominated in a foreign 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 be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.05;
(9) have been exceeded so long as the incurrence by Loral Space or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all of such Permitted Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being Refinanced (plus accrued interest and premium (including tender premium) thereon, any committed or undrawn amounts associated with, original issue discount on, and underwriting discounts, fees, commissions and expenses incurred to refundin connection with, refinance or replace such Refinancing).
(e) The principal amount of any Indebtedness incurred pursuant to this clause (9)Refinance other Indebtedness, not if incurred in a different currency from the Indebtedness being Refinanced, shall be calculated based on the currency exchange rate applicable to exceed $50 million; or
(10) the incurrence by Restricted Subsidiaries of Guarantees of currencies in which such respective Indebtedness of Loral Space or any Restricted Subsidiary is denominated that is not subordinated to in effect on the Guaranty date of the Subordinated Notessuch Refinancing.
(cf) Loral Space shall The Parent will not, and will not permit the Issuers or any other Guarantor to, directly or indirectly, incur any Indebtedness (including Permitted Debt) that is contractually subordinated or junior in right of payment to any other Indebtedness of Loral Space the Parent, the Issuers or such Guarantor, as the case may be, unless such Indebtedness is also contractually expressly subordinated in right of payment to the Loral Space Guaranty Notes or the applicable Note Guarantee to the extent and in the same manner as such Indebtedness is subordinated to other Indebtedness of the Subordinated Notes on substantially identical termsParent, the Issuers or such Guarantor, as the case may be; provided, however, that no (i) unsecured Indebtedness of Loral Space shall not be deemed treated as subordinated or junior to any other Indebtedness merely because it is unsecured and (ii) Indebtedness shall not be contractually treated as subordinated or junior in right of payment to any other Indebtedness of Loral Space solely by virtue of being unsecuredmerely because such Indebtedness has a junior priority with respect to any collateral.
(d) For purposes of determining compliance with this Section 4.05, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (10) of paragraph (b) of this Section 4.05, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.05, Loral Space shall be permitted to classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.05.
Appears in 1 contract
Sources: Indenture (Horizon Pharma PLC)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space shall The Issuer will not, and shall will 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"”) any Indebtedness (including Acquired Debt), and Loral Space shall the Issuer will not issue any Disqualified Stock and shall will not cause or permit any of its Restricted Subsidiaries to issue any shares of Preferred Stockpreferred stock; provided, however, that Loral Space the Issuer or any a Restricted Subsidiary may incur Indebtedness (including Acquired Debt), and Loral Space may ) or issue Disqualified Stock, and the Issuer may issue Disqualified Stock and any Restricted Subsidiary may issue Preferred Stockshares of preferred stock, if, after giving effect to in each case if the incurrence of such Indebtedness or Fixed Charge Coverage Ratio at the issuance of such Disqualified Stock or Preferred Stock and the application of the proceeds thereof, no Loral Space Default would occur as a consequence time of such incurrence or issuance or be continuing following issuance, after giving pro forma effect to such incurrence or issuance and either (1) the Consolidated Leverage Ratio of Loral Space would be less than 5.0 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of such date and to the use of proceeds therefrom as if the same had occurred at the beginning of the Issuer’s most recent recently ended full four fiscal quarters for which internal financial statements are available quarterly or annual balance sheet is less than would have been at least equal to 2.0 to 1.0.
(b) Nothing contained in paragraph (aSection 4.07(a) of this Section 4.05 shall will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "“Permitted Debt"Indebtedness”):
(1i) the incurrence by Loral Space and its the Issuer or any Restricted Subsidiaries of additional Existing Indebtedness;
(ii) the incurrence by the Issuer or any Restricted Subsidiary of Indebtedness and letters of credit pursuant to under Credit Facilities in an aggregate a combined principal amount at any one time outstanding under this clause (1ii) not to exceed $850 million as €50.0 million, plus in the case of any refinancing of any Indebtedness permitted under this clause (ii) or any portion thereof, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses Incurred in connection with such date of incurrence refinancing, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Issuer or any Restricted Subsidiary since the Issue Date to repay term any Indebtedness outstanding under one or more the Credit Facilities and effect a corresponding commitment reduction thereunder pursuant to Section 4.08, provided that in no event shall such reduction reduce the availability under this clause (1ii) of paragraph (b) of Section 4.14to less than €25.0 million at any time outstanding;
(2iii) Indebtedness of the Issuer and the Guarantors represented by the Notes issued on the Issue Date and the related Note Guarantees;
(iv) the incurrence by Loral Space and its the Issuer or any Restricted Subsidiaries of Indebtedness represented by (A) Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the Existing 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 business of the Issuer or any Restricted Subsidiaries or (B) Indebtedness otherwise incurred to finance the purchase, lease, rental or cost of design, construction, installation or improvement of property (real or personal) or equipment that is used or useful in a Permitted Business, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets, and any Indebtedness which refinances, replaces or refunds such Indebtedness, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (iv), not to exceed the greater of €15.0 million and 29.0% of Consolidated EBITDA of the Issuer at any time outstanding;
(3v) the incurrence by Loral Space of Indebtedness represented by the Subordinated Notes and Loral Space's 9 1/2% Senior Subordinated Notes due 2006;
(4) the issuance by a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt); provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of a Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Loral Space that was not permitted by this clause (4);
(5) the incurrence by Loral Space Issuer or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance refinance, replace, defease or replace discharge any Indebtedness (other than intercompany Indebtedness)that Indebtedness) that was permitted by this Guaranty Indenture to be incurred under paragraph Section 4.07(a) or clauses (ai), (iii), (v) or (xi) of this Section 4.05 or clauses (2), (3) or this clause (5) of this paragraph (b4.07(b);
(6vi) the incurrence by Loral Space the Issuer or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Loral Space the Issuer and any of its Restricted Subsidiaries; provided, however, that:
(A) if Loral Space the Issuer or any Guarantor is the obligor on such IndebtednessIndebtedness and the payee is not the Issuer or any Guarantor, such Indebtedness must be ((i) except in respect of (A) the intercompany current liabilities incurred in the ordinary course of business in connection with cash management positions of the Issuer and the Restricted Subsidiaries or (B) Indebtedness of the Issuer or any Guarantor incurred in respect or as a result of the receipt by the Issuer or the Guarantor of amounts in advance of payments and/or dividends and/or other payments by a Restricted Subsidiary which, in the good faith judgment of the Issuer, are anticipated to be made to and/or recovered by the Issuer or the relevant Guarantor in the future, and where such advance payment made by the Restricted Subsidiary to the Issuer or the Guarantor is not made with the proceeds of an incurrence of Indebtedness by such Restricted Subsidiary; and (ii) only to the extent legally permitted) expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to this Guaranty the Notes, in the case of the Subordinated NotesIssuer, or the relevant Note Guarantee, in the case of a Guarantor; and
(B) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Loral Space the Issuer or a Restricted Subsidiary thereof and and
(iiC) any sale or other transfer of any such Indebtedness to a Person that is not either Loral Space the Issuer or a Restricted Subsidiary thereof shall Subsidiary, will be deemed, in each case, to constitute an incurrence of such Indebtedness by Loral Space the Issuer or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6vi);
(7vii) the issuance by any Restricted Subsidiary to the Issuer or to any Guarantor of shares of preferred stock; provided, however, that:
(A) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Issuer or a Guarantor; and
(B) any sale or other transfer of any such preferred stock to a Person that is not either the Issuer or a Guarantor, will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (vii);
(viii) the incurrence by Loral Space the Issuer or any Restricted Subsidiaries of Hedging Obligations in the ordinary course of business and not for speculative purposes;
(a) the guarantee by the Issuer or any Restricted Subsidiaries of Indebtedness of the Issuer or a Restricted Subsidiary, in each case to the extent that the guaranteed Indebtedness was permitted to be incurred by another provision of this Section 4.07; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes or any Note Guarantee, then the guarantee must be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed or (b) without limiting Section 4.10, Indebtedness arising by reason of any Lien granted by or applicable to such Person securing Indebtedness of the Issuer or any Restricted Subsidiary so long as the Incurrence of such Indebtedness is permitted under the terms of this Indenture (other than pursuant to this clause (ix));
(x) the incurrence by the Issuer or any Restricted Subsidiaries of Indebtedness (whether contingent or non-contingent) in respect of (a) workers’ compensation claims; self- retention or self-insurance obligations; insurance premiums; release, appeal, surety and similar bonds; letters of credit, surety, performance or appeal bonds, bid bonds, advance bonds or similar instruments, customs, VAT or other tax guarantees and related obligations and completion guarantees or similar instruments, in each case in this clause (x) (a) incurred in the ordinary course of business, (b) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations incurred in the ordinary course of business or in respect of any regulatory requirement; provided, however, that upon the drawing of such letters of credit or similar instruments, the obligations are reimbursed within 30 days following such drawing, (c) the financing of insurance premiums in the ordinary course of business and (d) any customary cash management, cash pooling or netting or setting off arrangements in the ordinary course of business;
(xi) Indebtedness of any Person (i) outstanding on the date on which such Person becomes a Restricted Subsidiary of the Issuer or is merged, consolidated, amalgamated or otherwise combined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Issuer or any Restricted Subsidiaries or (ii) incurred to provide all or a portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Issuer or a Restricted Subsidiary; provided, however, with respect to this clause (xi), that at the time of such acquisition or other transaction (i) the Issuer would have been able to incur €1.00 of additional Indebtedness pursuant to Section 4.07(a) after giving pro forma effect to the incurrence of such Indebtedness pursuant to this clause (xi) or (ii) the Fixed Charge Coverage Ratio of the Issuer would not be less than it was immediately prior to giving pro forma effect to such acquisition or other transaction;
(xii) the incurrence by the Issuer or any Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness is covered within 30 Business Days of incurrence;
(xiii) the incurrence by the Issuer or any Restricted Subsidiary of Indebtedness arising from agreements of the Issuer or a Restricted Subsidiary providing for customary indemnification, obligations in respect of earnouts or other adjustments of purchase price or, in each case, similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business or assets or Person or any Equity Interests of a Subsidiary, provided that, in the case of a disposition, the maximum liability of the Issuer and its Restricted Subsidiaries in respect of all such Indebtedness shall at no time exceed the gross proceeds, including the Fair Market Value of non-cash proceeds (measured at the time received and without giving effect to any subsequent changes in value), actually received by the Issuer and its Restricted Subsidiaries in connection with such disposition;
(xiv) the incurrence by the Issuer or any Restricted Subsidiary of Indebtedness in respect of (a) judgment, customs, advance tax payments, VAT or other tax guarantees or similar instruments issued in the ordinary course of business, (b) bankers’ acceptances, discontinued bills of exchange or other similar instruments or obligations issued or relating to liabilities or obligations incurred in the ordinary course of business and (c) customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(xv) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse to the Issuer or any of its Restricted Subsidiaries other than a Receivables Subsidiary (except for Standard Securitization Undertakings); and
(xvi) the incurrence of Hedging Obligations additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (xvi), not to exceed the greater of €15.0 million and 29.0% of Consolidated EBITDA of the Issuer at any time outstanding.
(c) Notwithstanding anything to the contrary contained in this Indenture, the aggregate principal amount of Indebtedness (excluding any interest paid in kind) that is permitted to be incurred by Restricted Subsidiaries that are not Guarantors pursuant to Section 4.07(a) and Section 4.07(b)(ii) and (xvi) and without double counting, including all Indebtedness incurred for by a Restricted Subsidiary that is not a Guarantor to redeem, refund, repay, replace, defease or discharge such Indebtedness, shall not exceed at any one time outstanding an amount equal to the purpose greater of fixing or hedging interest rate risk or currency exchange rate risk;€25.0 million and 48.4% of Consolidated EBITDA of the Issuer on a pro forma basis (including a pro forma application of the net proceeds therefrom).
(8) d) For purposes of determining compliance with this Section 4.07, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in Section 4.07(a) or in Section 4.07(b)(i) through (xvi), the Issuer will be permitted to classify such item of Indebtedness on the date of its incurrence or to later reclassify all or a portion of such item of Indebtedness in any manner that complies with this Section 4.07; provided that Indebtedness outstanding under the Existing Facilities on the Issue Date after application of the proceeds from the issuance of the Notes will initially be deemed to have been incurred on such date pursuant to Section 4.07(b)(i) and may not be reclassified. The accrual of interestinterest or preferred stock dividends, 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 preferred stock or Disqualified Stock or Preferred Stock in the form of additional shares of the same class of preferred stock or Disqualified Stock or Preferred Stock, as the case may be, will not be deemed to be an incurrence of Indebtedness or an issuance of preferred stock or Disqualified Stock or Preferred Stock for purposes of this Section 4.05;
(9) 4.07; provided, in each such case, that the incurrence by Loral Space amount of any such accrual, accretion or any payment is included in Fixed Charges of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, the Issuer as applicable) accrued. If at any time outstandingan Unrestricted Subsidiary becomes a Restricted Subsidiary, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (9), not to exceed $50 million; or
(10) the incurrence by Restricted Subsidiaries of Guarantees of Indebtedness of Loral Space or any Restricted such Subsidiary that is not subordinated to the Guaranty of the Subordinated Notes.
(c) Loral Space shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of Loral Space unless such Indebtedness is also contractually subordinated in right of payment to the Loral Space Guaranty of the Subordinated Notes on substantially identical terms; provided, however, that no Indebtedness of Loral Space shall be deemed to be contractually subordinated incurred by a Restricted Subsidiary of the Issuer as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under this covenant, the Issuer shall be in right default of payment to any other Indebtedness of Loral Space solely by virtue of being unsecuredthis Section 4.07).
(de) For purposes of determining compliance with any euro-denominated restriction on the incurrence of Indebtedness, the euro-equivalent principal amount of Indebtedness denominated in a foreign currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred. Notwithstanding any other provision of this Section 4.054.07, the maximum amount of Indebtedness that the Issuer or any Restricted Subsidiary may incur pursuant to this Section 4.07 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.
(f) The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the event that an item case of proposed any Indebtedness meets issued with original issue discount;
(2) the criteria of more than one principal amount of the categories Indebtedness, in the case of Permitted Debt described any other Indebtedness; and
(3) in clauses (1) through (10) of paragraph (b) of this Section 4.05, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.05, Loral Space shall be permitted to classify such item 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 its incurrence in any manner that complies with this Section 4.05determination; and
(B) the amount of the Indebtedness of the other Person.
Appears in 1 contract
Sources: Indenture
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) Loral Space shall The Company will 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"1) Incur any Indebtedness (including Acquired Debt), and Loral Space shall not or issue any Disqualified Stock and shall not Capital Stock, or
(2) cause or permit any of its Restricted Subsidiaries to Incur any Indebtedness or issue any shares of Preferred StockDisqualified Capital Stock or preferred stock, in each case, other than Permitted Indebtedness; provided, however, that Loral Space or any Restricted Subsidiary the Company may incur issue Disqualified Capital Stock and may Incur Indebtedness (including including, without limitation, Acquired Debt), and Loral Space any Guarantor may issue Disqualified Stockpreferred stock or Incur Indebtedness (including, and any Restricted Subsidiary may issue Preferred Stockwithout limitation, ifAcquired Debt), if immediately after giving pro forma effect to the incurrence of such Indebtedness proposed Incurrence or the issuance of such Disqualified Stock or Preferred Stock and the receipt and application of the net proceeds thereoftherefrom, no Loral Space Default would occur as a consequence of such incurrence or issuance or be continuing following such incurrence or issuance and either (1) the Company’s Consolidated Leverage Coverage Ratio of Loral Space would be less than 5.0 at least 2.00 to 1.0, or (2) Loral Space's Consolidated Capital Ratio as of the most recent available quarterly or annual balance sheet is less than 2.0 to 1.01.00.
(b) Nothing contained in paragraph (a) of this This Section 4.05 shall 4.09 will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "“Permitted Debt"Indebtedness”):
(1) Indebtedness of the incurrence Company or any Restricted Subsidiary outstanding on the Issue Date (other than Indebtedness under the Bank Credit Agreement) as reduced by Loral Space the amount of any scheduled amortization payments or mandatory prepayments when actually paid or permanent reductions thereof;
(2) Indebtedness Incurred by the Company under the Initial Notes and its by the Guarantors under the Guarantees;
(3) Indebtedness Incurred by the Company or any Restricted Subsidiaries of additional Indebtedness and letters of credit Subsidiary pursuant to the Bank Credit Facilities in an Agreement or other Credit Facilities; provided that the aggregate principal amount at any one time of all such Indebtedness outstanding under this clause (13) not to exceed $850 million as of such any date of incurrence less Incurrence (after giving pro forma effect to the application of the proceeds of such Incurrence), including all Permitted Refinancing Indebtedness Incurred to repay, redeem, extend, refinance, renew, replace, defease or refund any Indebtedness Incurred pursuant to this clause (3), shall not exceed the greater of (i) $3.5 billion and (ii) the maximum principal amount of Indebtedness that could be Incurred such that after giving effect to such Incurrence, the Company’s Consolidated Secured Leverage Ratio would be no greater than 4.75 to 1.00, to be reduced dollar-for-dollar by the aggregate amount of all Net Cash Proceeds of Asset Sales applied by an Obligor to repay term Indebtedness outstanding under one or more the Credit Facilities pursuant to clause (1) of paragraph (b) of Section 4.14;
(2) the incurrence by Loral Space and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by Loral Space of Indebtedness represented by the Subordinated Notes and Loral Space's 9 1/2% Senior Subordinated Notes due 20064.10 hereof;
(4) Indebtedness of a Restricted Subsidiary to the issuance Company or any Guarantor, or of the Company to any Guarantor, for so long as such Indebtedness is held by a Subsidiary of Preferred Stock or the incurrence by Loral Space's Subsidiaries of Non-Recourse Debt (including Acquired Debt that constitutes Non-Recourse Debt)an Obligor; provided, however, provided that if as of any date any Person other than an Obligor acquires any such Indebtedness ceases to be Non-Recourse Debt or holds a Lien in respect of such Indebtedness (other than a SubsidiaryPermitted Lien), such event acquisition or holding shall be deemed to constitute be an incurrence Incurrence of Indebtedness not constituting Permitted Indebtedness under this clause (4) by the issuer of such Indebtedness;
(5) Permitted Refinancing Indebtedness;
(6) Indebtedness Incurred by the Company or any Restricted Subsidiary solely to finance the construction or acquisition or improvement of, or consisting of Capitalized Leased Obligations Incurred to acquire rights of use in, property or assets or any kind whatsoever, whether real, personal or mixed and whether tangible or intangible and including all contract rights, income or revenue rights, real property interests, trademarks, trade names, equipment or Equity Interests or ownership of any other Person useful in any Core Business, not to exceed $75 million in aggregate principal amount outstanding at any time (including all Permitted Refinancing Indebtedness Incurred to repay, redeem, extend, refinance, renew, replace, defease or refund any Indebtedness Incurred pursuant to this clause (6)) for all of the Company and its Restricted Subsidiaries;
(7) Hedging Obligations and Interest Swap Obligations entered into not as speculative Investments but as hedging transactions designed to protect the Company and its Restricted Subsidiaries against fluctuations in interest rates in connection with Indebtedness otherwise permitted hereunder or against exchange rate risk or commodity pricing risk;
(8) Indebtedness of the Company or any Restricted Subsidiary arising in respect of (x) performance bonds, completion guarantees and similar arrangements (to the extent that the Incurrence thereof does not result in the Incurrence of any obligation for the payment of borrowed money of others), in the ordinary course of business; provided, that such Indebtedness shall be Incurred solely in connection with the development, construction, improvement or enhancement of assets useful in the business of the Company and its Restricted Subsidiaries or the development, improvement or enhancement of the operations of the Company and its Restricted Subsidiaries or (y) Support Agreements;
(9) Indebtedness of the Company or any Restricted Subsidiary arising in respect of letters of credit, bankers’ acceptances, worker’s compensation claims, payment obligations in connection with self-insurance or similar obligations, surety bonds and appeal bonds (to the extent that the Incurrence thereof does not result in the Incurrence of any obligation for the payment of borrowed money of others), in the ordinary course of business, in amounts and for the purposes customary in such Person’s industry;
(10) the guarantee by a Guarantor of Indebtedness of the Company or of any other Guarantor, or the guarantee by a Restricted Subsidiary of Loral Space Indebtedness of the Company or another Restricted Subsidiary, provided such Indebtedness was outstanding on the Issue Date or was, at the time it was incurred, permitted to be incurred by the Company or such Guarantor or Restricted Subsidiary under this Indenture; provided that was not permitted if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the guarantee may only be incurred by this clause (4)a Guarantor and shall be subordinated to or pari passu with, as applicable, the Notes to the same extent as the Indebtedness guaranteed;
(511) the incurrence issuance by Loral Space any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds shares of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness)that was permitted by this Guaranty to be incurred under paragraph (a) of this Section 4.05 or clauses (2), (3) or this clause (5) of this paragraph (b);
(6) the incurrence by Loral Space or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Loral Space and any of its Restricted Subsidiariespreferred stock; provided, however, that:
(A) if Loral Space is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to all Obligations with respect to this Guaranty of the Subordinated Notes; and
(B) (ia) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness preferred stock being held by a Person other than Loral Space the Company or a Restricted Subsidiary thereof and Subsidiary; and
(iib) any sale or other transfer of any such Indebtedness preferred stock to a Person that is not either Loral Space the Company or a Restricted Subsidiary thereof shall of the Company will be deemed, in each case, to constitute an incurrence issuance of such Indebtedness preferred stock by Loral Space or such Restricted Subsidiary, as the case may be, Subsidiary that was not permitted by this clause (611);
(712) Indebtedness arising from agreements of the incurrence by Loral Space Company or any Restricted Subsidiary providing for indemnification, adjustment of its Restricted Subsidiaries purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of Hedging Obligations that are incurred for the purpose of fixing any business, assets or hedging interest rate risk or currency exchange rate riskSubsidiary otherwise permitted by this Indenture;
(8) the accrual of interest, the accretion or amortization of original issue discount, 13) the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock or Preferred Capital Stock in the form of additional shares of the same class of Disqualified Stock or Preferred Capital Stock, as the case may be, will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or Preferred Stock for purposes of this Section 4.05;
(914) [Reserved];
(15) guarantees incurred in the incurrence by Loral Space or any ordinary course of its Restricted Subsidiaries business supporting obligations of additional suppliers, lessees and vendors;
(16) Indebtedness in an aggregate principal amount outstanding under this clause (or accreted value, 16) as applicable) at of any time outstandingdate of Incurrence, including all Permitted Refinancing Indebtedness incurred Incurred to refundrepay, refinance redeem, extend, refinance, renew, replace, defease or replace refund any Indebtedness incurred Incurred pursuant to this clause (916), not to exceed the greater of (a) $50 million; or400 million and (b) 13.0% of Consolidated Net Tangible Assets;
(1017) Indebtedness representing deferred compensation to employees of the incurrence by Company and the Restricted Subsidiaries incurred in the ordinary course of Guarantees of Indebtedness of Loral Space or any Restricted Subsidiary that is not subordinated to the Guaranty of the Subordinated Notes.business;
(c18) Loral Space shall not incur Indebtedness consisting of promissory notes issued by the Company to current or former officers, directors, managers and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of any Indebtedness Holding Company or the Company permitted by clause (including Permitted Debt6) of Section 4.07(b); provided that is contractually subordinated in right of payment to any other Indebtedness of Loral Space unless (i) such Indebtedness is also contractually shall be subordinated in right of payment to the Loral Space Guaranty Notes on terms (it being understood that, subject to the dollar limitation described below, such subordination provisions shall permit the payment of interest and principal in cash if no Event of Default has occurred) and (ii) the aggregate amount of all cash payments (whether principal or interest) made by the Company in respect of such notes since the Issue Date, when combined with the aggregate amount of Restricted Payments made pursuant to clause (6) of Section 4.07(b) since the Issue Date, shall not exceed $10 million;
(19) Indebtedness consisting of obligations of the Subordinated Notes Company or the Restricted Subsidiaries under deferred compensation or other similar arrangements incurred by such Person in connection with any Investment expressly permitted under Section 4.07;
(20) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(21) Acquired Debt and other Indebtedness of Persons outstanding on substantially identical termsthe date on which such Person became a Restricted Subsidiary or was acquired by, or merged into, the Company or any of its Restricted Subsidiaries or incurred or issued to finance a merger, consolidation or other acquisition; provided, however, that no (A) at the time such Person is acquired, either (i) the Company would have been able to incur at least $1.00 of additional Indebtedness pursuant to Section 4.09(a) on a pro forma basis after giving effect to the incurrence of such Acquired Debt or Indebtedness pursuant to this clause (21) or (ii) on a pro forma basis, the Consolidated Coverage Ratio of the Company and its Restricted Subsidiaries would be higher than such ratio immediately prior to such merger, consolidation or acquisition or (B) such Indebtedness is Indebtedness of Loral Space a Restricted Subsidiary that existed at the time such Person became a Subsidiary and was not created in anticipation or contemplation thereof;
(22) Indebtedness, Disqualified Capital Stock or preferred stock of the Company to the extent the net proceeds thereof are promptly deposited to defease the Notes as described under Article 8 of this Indenture; and
(23) Indebtedness (including, without limitation, Support Agreements) used to finance, or incurred or issued for the purpose of (or in the case of Support Agreements, incurred in connection with) financing, Expansion Capital Expenditures or Development Projects (including Permitted Refinancing Indebtedness in respect thereof) in an aggregate principal amount, including all Permitted Refinancing Indebtedness Incurred to repay, redeem, extend, refinance, renew, replace, defease or refund any Indebtedness Incurred pursuant to this clause (23), not to exceed $500 million at any time outstanding provided that no Default or Event of Default then exists or would result therefrom. For purposes of this definition, it is understood that the Company may rely on internal or publicly reported financial reports even though there may be subsequent adjustments (including review and audit adjustments) to such financial statements. For avoidance of doubt, any incurrence of Permitted Indebtedness which is based upon or made in reliance on a computation based on such internal or publicly reported financial statements shall be deemed to continue to comply with the applicable covenant, notwithstanding any subsequent adjustments that may result in changes to such internal or publicly reported financial statements. All Indebtedness under the Bank Credit Agreement outstanding on the Issue Date shall be deemed to have been incurred under clause (b)(3) of this Section 4.09 and the Company and its Restricted Subsidiaries shall not be permitted to reclassify all or any portion of such Indebtedness. Any Indebtedness of any Person existing at the time it becomes a Restricted Subsidiary (whether by merger, consolidation, acquisition of capital stock or otherwise) shall be deemed to be contractually subordinated in right Incurred as of payment to the date such Person becomes a Restricted Subsidiary. Notwithstanding any other provision of this Section 4.09, a guarantee of Indebtedness of Loral Space solely by virtue the Company or of being unsecured.
(d) Indebtedness of a Restricted Subsidiary will not constitute a separate incurrence, or amount outstanding, of Indebtedness so long as the Indebtedness so guaranteed was incurred in accordance with the terms of this Indenture. For purposes of determining compliance with this Section 4.054.09, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt Indebtedness described in clauses (1) through (1023) of paragraph (b) of this Section 4.05, such definition or is entitled to be incurred Incurred pursuant to paragraph (aSection 4.09(b) of this Section 4.05hereof, Loral Space shall be permitted to the Company will, in its sole discretion, classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.054.09 and such item of Indebtedness will be treated as having been Incurred pursuant to only one of such clauses or pursuant to Section 4.09(b) hereof. The Company may reclassify such Indebtedness from time to time in its sole discretion and may classify any item of Indebtedness in part under one or more of the categories of Permitted Indebtedness and/or in part as Indebtedness entitled to be Incurred pursuant to Section 4.09(b) hereof. Accrual of interest or dividends, the accretion of principal amount or dividends, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms or the payment of dividends on any Disqualified Capital Stock in the form of additional Disqualified Capital Stock with the same terms will not be deemed to be an Incurrence of Indebtedness or an issuance of Disqualified Capital Stock or preferred stock for purposes of this covenant. Any increase in the amount of Indebtedness solely by reason of currency fluctuations will not be deemed to be an incurrence of Indebtedness for purposes of determining compliance with this covenant. A change in GAAP that results in an obligation existing at the time of such change, not previously classified as Indebtedness, becoming Indebtedness will not be deemed to be an incurrence of Indebtedness for purposes of this covenant.
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Sources: Indenture (Red Rock Resorts, Inc.)