Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries and Unrestricted 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 Indebtedness) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) the 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 such Disqualified Stock is issued would have been at least 2 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall not apply to: (i) the incurrence by the Company of Senior Revolving Debt and reimbursement obligations in respect of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries that are Subsidiary Guarantors with respect thereto) not to exceed an amount equal to $25,000,000; (ii) the incurrence by the Company and its Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes; (iii) the incurrence by the Company of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary Guarantees; (iv) the incurrence by the Company or any of its 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 used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $10,000,000 at any time outstanding; (v) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, Indebtedness that was permitted by this Indenture to be incurred; (vi) the incurrence by the Company or any of its Wholly Owned Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Subsidiaries; provided, however, that (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than a Wholly Owned Subsidiary and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be; (vii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors 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 this Indenture to be incurred; (viii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000; (ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company; (x) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; and (xi) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtedness.
Appears in 1 contract
Sources: Indenture (RBX Corp)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall Borrower will not, and shall will not permit any of its Subsidiaries and Unrestricted 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 Indebtedness) Debt), and the Company shall Borrower will not issue any Disqualified Stock and shall will not permit any of its Subsidiaries and Unrestricted Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company Borrower and the Restricted Subsidiaries may incur Indebtedness (including Acquired IndebtednessDebt) or issue shares of Disqualified Stock and the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue or preferred stock if: (i) of a Restricted Subsidiary, if the Fixed Charge Coverage Ratio for the Company's Borrower’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or preferred stock of a Restricted Subsidiary is issued issued, as the case may be, would have been at least 2 2.0 to 11.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, incurred or the Disqualified Stock or preferred stock of a Restricted Subsidiary had been issued, as the case may be, at the beginning of such four-quarter period; and .
(iib) no Default or Event The provisions of Default shall have occurred and be continuing or would occur as a consequence thereof; providedSection 6.9(a) hereof will not prohibit the incurrence of any of the following items of Indebtedness (collectively, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall not apply to:“Permitted Debt”):
(i) the incurrence by the Company Borrower and any Restricted Subsidiary of Senior Revolving Debt and reimbursement obligations in respect of Indebtedness (including letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantorscredit) under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (1) (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company Borrower and its Restricted Subsidiaries that are Subsidiary Guarantors with respect theretothereunder) not to exceed the greater of (a) $800.0 million and (b) an amount equal to the sum of (A) $25,000,000600.0 million plus (B) 10% of Adjusted Consolidated Net Tangible Assets determined as of the date of the incurrence of such Indebtedness after giving pro forma effect to such incurrence and the application of the proceeds therefrom;
(ii) the incurrence by the Company Borrower and its Restricted Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) the incurrence by the Company Loan Parties of Indebtedness represented by the Notes pursuant to this Agreement and by the Subsidiaries of Indebtedness represented by the Subsidiary Guaranteesother Loan Documents;
(iv) the incurrence by the Company Borrower or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or Purchase Money Obligationspurchase money obligations, in each case case, incurred for the purpose of financing all or any part of the purchase price or cost of construction design, construction, installation or improvement of property property, plant or equipment used in the business of the Company Borrower or such Subsidiaryany of its Restricted Subsidiaries, in an aggregate principal amount 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 $10,000,000 50.0 million at any time outstanding;
(v) the incurrence by the Company Borrower or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extendrenew, refund, refinance, renew, replace, defease or refund, discharge any Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture Agreement to be incurredincurred under Section 6.9(a) hereof or clauses (ii), (iii), (iv) or (xi) of this Section 6.9(b) or this clause (v);
(vi) the incurrence by the Company Borrower or any of its Wholly Owned Restricted Subsidiaries of intercompany Indebtedness between or among the Company Borrower and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Restricted Subsidiaries; provided, however, that that:
(A) if the Borrower or any Guarantor is the obligor on such Indebtedness and the payee is not the Borrower or a Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations; and
(B) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Borrower or a Wholly Owned Restricted Subsidiary of the Borrower and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company Borrower or a Wholly Owned Restricted Subsidiary shall of the Borrower will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi);
(vii) the incurrence issuance by any of the Company Borrower’s Restricted Subsidiaries to the Borrower or to any of its Restricted Subsidiaries of shares of preferred stock; provided, however, that:
(A) any subsequent issuance or transfer of Equity Interests that are results in any such preferred stock being held by a Person other than the Borrower or a Restricted Subsidiary Guarantors of Hedging Obligations that are incurred for the purpose Borrower; and
(B) any sale or other transfer of fixing or hedging interest rate risk with respect any such preferred stock to any floating rate Indebtedness a Person that is not either the Borrower or a Restricted Subsidiary of the Borrower, will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this Indenture to be incurredclause (vii);
(viii) the incurrence by the Company Borrower or any of its Restricted Subsidiaries that are Subsidiary Guarantors of Indebtedness (Hedging Obligations in addition to Indebtedness permitted by any other clause the ordinary course of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000business;
(ix) the incurrence by the Company's Unrestricted Borrower or any of its Restricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases obligations relating to be Non-Recourse Debt net gas balancing positions arising in the ordinary course of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Companybusiness and consistent with past practice;
(x) the Guarantee by the Borrower or any of the Guarantors of Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower that was permitted to be incurred by another provision of this Section 6.9; provided that if the Company Indebtedness being guaranteed is subordinated to or pari passu with the Loans, then the Guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(xi) Permitted Acquisition Indebtedness;
(xii) the incurrence by the Borrower or any of its Restricted Subsidiaries that 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 a Subsidiary Guarantor covered within five Business Days;
(xiii) Indebtedness consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Borrower and its Restricted Subsidiaries;
(xiv) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness arising from agreements of the Borrower or any of its Restricted Subsidiaries providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or from guarantees assumed in connection with the disposition of letters any business, assets or Capital Stock of credita Subsidiary, surety bonds or performance bonds securing provided that the performance maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the Company gross proceeds actually received by the Borrower and its Restricted Subsidiaries in connection with such disposition;
(xv) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness in respect of bid, performance, surety and similar bonds issued for the account of the Borrower and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Borrower or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case, other than an obligation for money borrowed); and
(xvi) the incurrence by the Borrower or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding not to exceed $100.0 million.
(c) The Borrower will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Borrower or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Obligations on substantially identical terms; provided, however, that no Indebtedness shall be deemed to be contractually subordinated in right of payment to any other Indebtedness solely by virtue of being unsecured or by virtue of being secured on a first or junior Lien basis.
(d) Notwithstanding the foregoing, the Borrower and its Restricted Subsidiaries will not incur any Indebtedness secured by a Priority Lien unless the principal amount of such Indebtedness is pari passu in right of payment with the principal amount of all other Indebtedness secured by a Priority Lien. For purposes of determining compliance with this Section 6.9, 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 (i) through (xvi) above or is entitled to be incurred by any Person acquiring pursuant to Section 6.9(a) hereof, the Borrower will be permitted to classify such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such businessitem of Indebtedness, assets of a Subsidiary in any manner that complies with this Section 6.9; provided that any Indebtedness under the Existing RCF Agreement on the Closing Date shall be considered incurred under clause (1) of the Company definition of Permitted Debt and may not be later reclassified. 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 in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for the purpose purposes of financing such acquisitionthis Section 6.9; provided, in a principal each such case, that the amount not to exceed 25% thereof is included in Fixed Charges of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof Borrower as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; and
(xi) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Personaccrued. Notwithstanding any other provision of this covenantSection 6.9, a Guarantee the maximum amount of Indebtedness permitted by that the terms of Borrower or any Restricted Subsidiary may incur pursuant to this Indenture at the time such Indebtedness was incurred Section 6.9 shall not constitute be deemed to be exceeded solely as a separate incurrence result of fluctuations in exchange rates or currency values.
(e) The amount of any Indebtedness outstanding as of any date will be:
(i) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(ii) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(iii) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such asset at such date of determination; and
(B) the amount of the Indebtedness of the other Person.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company Neither Borrower shall not, and nor shall not either Borrower permit any of its Subsidiaries and Unrestricted 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 Indebtednessa) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries to issue any shares of preferred stockJunior Lien Debt; provided, however, provided that the Company may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) prior to the Fixed Charge Coverage Ratio for incurrence of such Junior Lien Debt, 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 such Disqualified Stock is issued would Rating Agency Condition shall have been at least 2 to 1satisfied, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; and (ii) no Default or Event of Default or Early Amortization Event shall have occurred and be continuing or would occur as result from the issuance of such Junior Lien Debt, (iii) to the extent that immediately after giving effect to the issuance of such Junior Lien Debt the aggregate outstanding amount of Junior Lien Debt would exceed $750.0 million, 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) funds transferred to the Collection Account pursuant to Section 2.24 in connection with such Determination Date shall not exceed 1.60 to 1.00 on a consequence thereof; provided, that no Guarantee may pro forma basis and (iv) such Junior Lien Debt shall not be incurred pursuant by or subject to this paragraph unless the guaranteed Indebtedness is incurred a guarantee by any Subsidiary of the Company or a other than any Company Subsidiary pursuant to this paragraph. The foregoing provisions shall not apply to:Guarantor;
(b) Pre-paid Miles Purchases, so long as (i) the incurrence by the Company aggregate amount of Senior Revolving Debt and reimbursement obligations in respect of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries that are Subsidiary Guarantors with respect thereto) Miles purchased thereunder does not to exceed an amount equal to the result of (x) $25,000,000;
500.0 million divided by (y) the rate by which such Person purchases Miles from the Company as of the Closing Date, (ii) the incurrence by the Company and its Subsidiaries of the Existing Indebtednesssuch Pre-paid Miles Purchases are consummated on or before December 31, including the Senior Subordinated Notes;
2020, (iii) the incurrence proceeds of such Pre-paid Miles Purchases are deposited to the MPH Revenue Account (iv) such sale is non-recourse to and non-refundable by the Company Borrower Parties and (v) the Indebtedness related thereto is (x) unsecured and subordinated to the Obligations pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent and (y) not guaranteed by Parent or any of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary Guaranteesits Subsidiaries;
(c) 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), 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 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)), (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 Weighted Average Life to Maturity of the existing Term Loans or notes outstanding pursuant to this clause (c), and (C) shall not be subject to any Guarantee by any Person other than a Loan Party, (ii) after giving effect to Indebtedness, the outstanding principal amount of the Priority Lien Debt shall not exceed the Priority Lien Cap (plus, fees, expenses, premium and accrued interest in respect of any Indebtedness incurred pursuant to this Section 6.02(c) which refinances other Indebtedness of the Borrower Parties 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 incurrence case of the issuance of any additional Indebtedness issued in a Capital Markets Offering after the initial issuance, the terms and conditions governing such Indebtedness shall (x) be reasonably acceptable to the Administrative Agent or (y) be substantially similar to, or (taken as a whole) no more favorable (as reasonably determined by the Company) to the investors or holders providing such Indebtedness than those applicable to the then-outstanding Term Loans (except to the extent (I) such terms are conformed (or added) in the Loan Documents for the benefit of the Lenders holding then-outstanding Term Loans pursuant to an amendment hereto or thereto subject solely to the reasonable satisfaction of the Company and the Administrative Agent or (II) applicable solely to periods after the latest final maturity date of the Term Loans existing at the time of such incurrence) and (D) shall be issued pursuant to a single indenture (or one or more substantially similar indentures) for all such Indebtedness under this Section 6.02(c); 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 Parent other than any Borrower Party), (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 the notes issued on the Closing Date, the pro forma Peak Debt Service Coverage Ratio (calculated using the Maximum Quarterly Debt Service of the then existing Term Loans and notes and such Indebtedness) as of the immediately preceding Determination Date, immediately after giving effect to the issuance of such Indebtedness shall be more than (A) so long as a DSCR Step-up Period is not in effect, (i) for any date of determination prior to the Determination Date occurring in March, 2022, 1.50:1.00, (ii) for any date of determination during the period beginning on or after the Determination Date occurring in March 2022 but excluding the Determination Date occurring in September 2022, 1.75:1.00 and (iii) for any date of determination occurring on or after the Determination Date in September 2022, 2.25:1.00 and (B) if a DSCR Step-up Period is in effect on any Determination Date, 2.25:1.00;
(d) (x) Indebtedness of the Company or any of its Restricted Subsidiaries (other than IPB) (including any unused commitment) outstanding on the Closing Date and to the extent the principal amount is in excess of $2.5 million, listed on Schedule 6.02 and (y) intercompany Indebtedness represented (including any unused commitment) outstanding on the Closing Date owed by Capital Lease Obligationsthe Company to a Restricted Subsidiary (other than IPB), 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 used in the business of by a Restricted Subsidiary (other than IPB) to the Company or such Subsidiary, in an aggregate principal amount not by a Restricted Subsidiary (other than IPB) to exceed $10,000,000 at any time outstandinganother Restricted Subsidiary (other than IPB);
(v) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, Indebtedness that was permitted by this Indenture to be incurred;
(vi) the incurrence by the Company or any of its Wholly Owned Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Subsidiaries; provided, however, that (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than a Wholly Owned Subsidiary and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(vii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors 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 this Indenture to be incurred;
(viii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(xe) Indebtedness incurred by the Company or any of its Restricted Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment (other than IPB) (including letter of purchase price or similar obligations, or from guarantees of credit obligations and reimbursement obligations with respect to letters of creditcredit issued in the ordinary course of business), in respect of workers’ compensation claims, bid, appeal, performance or surety bonds bonds, performance or completion guarantees, trade contracts, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance and similar obligations in the ordinary course of business or other Indebtedness with respect to reimbursement or indemnification type obligations regarding workers’ compensation claims, bid, appeal, performance bonds securing or surety bonds, performance or completion guarantees, trade contracts, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance and similar obligations in the performance ordinary course of business or consistent with past practice;
(f) Indebtedness of the Company or any of its Restricted Subsidiaries incurred by (other than IPB) owing to Parent or any Person acquiring all or of its Subsidiaries that are counterparties to a portion of such business, assets of a Subsidiary Transaction Document;
(g) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes) of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds and its Restricted Subsidiaries (with proceeds other than cash or Cash Equivalents being valued at IPB and the fair market value thereof as determined by the Board Aggregator Entities) and obligations in respect of Directors of the Company in good faithBanking Product Obligations;
(h) actually received (i) any guarantee by the Company or any of its Restricted Subsidiaries (other than IPB) of Indebtedness or other obligations of any Borrower Party, so long as in the case of a guarantee of Indebtedness by a Restricted Subsidiary that is not a Guarantor, such Indebtedness could have been incurred directly by the Restricted Subsidiary providing such guarantee or (ii) any guarantee by a Restricted Subsidiary of Indebtedness or other obligations of a Borrower;
(i) Indebtedness arising from agreements of any Borrower Party (other than IPB) providing for customary indemnification or other similar obligations, in each case, incurred or assumed in connection with such dispositionany transaction not expressly prohibited by this Agreement or any other Loan Document;
(j) Indebtedness otherwise permitted under Sections 6.06; and
(xik) Indebtedness of the incurrence by a Receivables Subsidiary of Indebtedness Company and its Restricted Subsidiaries (other than IPB) not otherwise permitted under this Agreement in an aggregate outstanding amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtedness50.0 million.
Appears in 1 contract
Sources: Term Loan Credit and Guaranty Agreement (United Airlines, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company SPV Parties shall not, and shall not permit any of its Subsidiaries and Unrestricted 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 Indebtednessand Delta shall not, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect any Indebtedness with respect to any Pre-paid Miles Purchase other than as set forth in clause (b) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries to issue any shares of preferred stockbelow):
(a) Junior Lien Debt; provided, however, provided that the Company may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) prior to the Fixed Charge Coverage Ratio for incurrence of such Junior Lien Debt, 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 such Disqualified Stock is issued would Rating Agency Condition shall have been at least 2 to 1satisfied, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; and (ii) no Default or Event of Default or Early Amortization Event shall have occurred and be continuing or would occur as result from the issuance of such Junior Lien Debt, (iii) to the extent that immediately after giving effect to the 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) funds transferred to the Collection Account pursuant to Section 2.24 in connection with such Determination Date shall not exceed 1.60 to 1.00 on a consequence thereof; provided, that no Guarantee may pro forma basis and (iv) such Junior Lien Debt shall not be incurred pursuant by or subject to this paragraph unless the guaranteed Indebtedness is incurred a guarantee by the Company or a any Subsidiary pursuant to this paragraph. The foregoing provisions shall not apply to:of Delta other than any SPV Party;
(b) Pre-paid Miles Purchases, so long as (i) the incurrence by the Company aggregate amount of Senior Revolving Debt and reimbursement obligations Miles purchased in respect of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries that are Subsidiary Guarantors Pre-paid Miles Purchases or other Indebtedness incurred with respect thereto) to Pre-paid Miles Purchases does not to exceed an amount equal to $25,000,000;
(ii) the incurrence by the Company and its Subsidiaries result of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) the incurrence by the Company of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary Guarantees;
(iv) the incurrence by the Company or any of its 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 used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $10,000,000 at any time outstanding;
(v) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, Indebtedness that was permitted by this Indenture to be incurred;
(vi) the incurrence by the Company or any of its Wholly Owned Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Subsidiaries; provided, however, that (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than a Wholly Owned Subsidiary and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(vii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors 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 this Indenture to be incurred;
(viii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(x) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; and
(xi) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtedness.550.0 million divided by
Appears in 1 contract
Sources: Term Loan Credit and Guaranty Agreement (Delta Air Lines, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall not, and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries Restricted 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 Indebtedness) and the Company shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries and Unrestricted Subsidiaries that is not a Guarantor to issue any shares of preferred stockPreferred Stock; provided, however, that the Company and its Restricted Subsidiaries may incur Incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock ), and the Company's Restricted Subsidiaries that are Subsidiary not Guarantors may incur Indebtedness issue Preferred Stock, if on the date of such Incurrence or issuance and issue preferred stock if: after giving effect thereto, (ix) the Fixed Charge Coverage Consolidated Adjusted Debt to EBITDA Ratio for is less than 6.00 to 1.00 and (y) the Company's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding Consolidated Adjusted Senior Debt to EBITDA Ratio is less than 4:00 to 1:00 (this test being referred to herein as the date on which “Leverage Test”). For the purpose of the calculation of the Leverage Test, with respect to any period included in such additional Indebtedness is incurred or calculation, Consolidated EBITDA, the components of Consolidated Interest Expense, and Consolidated Adjusted Debt shall be calculated with respect to such Disqualified Stock is issued would have been at least 2 to 1, determined period by the Company in good faith on a pro forma basis (including a pro forma application of the net proceeds therefromand consistent with Permitted Adjustments), as if giving effect to any Permitted Acquisition, Asset Disposition or Incurrence or redemption or repayment of Indebtedness that has given rise to the additional Indebtedness had been incurredneed for such calculation, has occurred during such period or has occurred after such period and on or prior to the Disqualified Stock had been issued, as the case may be, at the beginning date of such four-quarter period; and calculation.
(iib) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall not apply to:
(i) the incurrence Incurrence by the Company of Senior Revolving Debt and reimbursement obligations in respect of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries that are Subsidiary Guarantors with respect thereto) not to exceed an amount equal to $25,000,000of the Existing Indebtedness;
(ii) the incurrence Incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) the incurrence by the Company of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary GuaranteesGuarantees (not including any Additional Notes);
(iviii) the incurrence (A) Purchase Money Indebtedness and mortgage financings (excluding Capital Lease Obligations and Synthetic Lease Obligations) hereafter Incurred by 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 used in the business of the Company or such Subsidiary, in an aggregate principal amount that does not to exceed $10,000,000 70,000,000 at any one time outstanding;
outstanding and (vB) the incurrence Indebtedness hereafter incurred by the Company or any of its Restricted Subsidiaries under any Channel Financing Facility in an aggregate principal amount that, when taken together with the aggregate then outstanding principal amount of Indebtedness incurred under all other Channel Financing Facilities of the Company and its Restricted Subsidiaries incurred under this clause (iii), does not exceed $30,000,000 at any one time outstanding;
(iv) 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 extend, refinanceRefinance, renew, replace, defease or refund, Indebtedness that was permitted by this Indenture to be incurredIncurred by the Company or such Restricted Subsidiary;
(viv) the incurrence Incurrence by the Company or any of its Wholly Owned Restricted Subsidiaries of intercompany Indebtedness (A) between or among the Company and any Restricted Subsidiaries of the Company and (B) consisting of debits and credits among the Company and its Wholly Owned Subsidiaries or between or among any Wholly Owned Subsidiariespursuant to a Centralized Cash Management System; provided, however, that (i1) any intercompany Indebtedness which is borrowed by the Company or a Guarantor from a Restricted Subsidiary that is not a Guarantor shall be expressly subordinated to the Notes or such Guarantor’s Guarantee and (2) (x) any subsequent issuance or transfer of Equity Interests Capital Stock that results in any such Indebtedness being held by a Person other than the Company or a Wholly Owned Restricted Subsidiary and of the Company, or (iiy) any sale or other transfer of any such Indebtedness to a Person that is not either other than the Company or a Wholly Owned Restricted Subsidiary of the Company, or a lender or agent upon exercise of remedies under a pledge of such Indebtedness under the Credit Agreement, shall be deemed, in each casecase of the foregoing clauses (2)(x) and (y), to constitute an incurrence Incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be;
(viivi) the incurrence Incurrence by the Company or any of its Restricted Subsidiaries that are Subsidiary Guarantors of Hedging Interest Swap Obligations that are incurred 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 incurredoutstanding;
(viiivii) the incurrence by Indebtedness of the Company or any of its Subsidiaries that are Restricted Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) under the Credit Agreement in an aggregate principal amount at any time outstanding not to exceed $900,000,000, less, to the sum extent a permanent repayment and/or commitment reduction is required thereunder as a result of $5,000,000such application, the aggregate amount of Net Proceeds applied to repayments under the Credit Agreement in accordance with Section 5.05;
(ixviii) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(x) Indebtedness incurred Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness under Currency Agreements;
(ix) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries represented by letters of credit for the account of the Company or such Restricted Subsidiary, as the case may be, in order to provide security for workers’ compensation claims, payment obligations in connection with self-insurance or similar requirements in the Ordinary Course of Business;
(x) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of performance bonds, bankers’ acceptances, workers’ compensation claims, completion guarantees, letters of credit surety or appeal bonds, payment obligations in connection with self-insurance or similar obligations Incurred in the Ordinary Course of Business;
(xi) the Guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary of the Company that is a Subsidiary Guarantor was permitted to be Incurred by another provision of this Section 5.04;
(xii) Indebtedness arising from agreements of the Company or a Restricted Subsidiary of the Company providing for indemnification, adjustment of purchase price or similar obligations, in each case, Incurred in connection with an Asset Disposition or from guarantees acquisition permitted by this Indenture or other sale or disposition of letters assets permitted under this Indenture;
(xiii) Indebtedness of credita Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred in contemplation of, surety bonds in connection with, as consideration in, or performance bonds securing the performance to provide all or any portion of the Company funds or any credit support utilized to consummate, the transaction or series of its Subsidiaries incurred by any Person acquiring all or a portion of related transactions pursuant to which such business, assets of Restricted Subsidiary became a Subsidiary of or was otherwise acquired by the Company); provided, however, that on the date that such Restricted Subsidiary is acquired by the Company, the Company for would have been able to Incur $1.00 of additional Indebtedness under the purpose first paragraph of financing this Section 5.04 pursuant to the Leverage Test after giving effect to the Incurrence of such acquisition, in a principal amount not Indebtedness pursuant to exceed 25% of the gross proceeds this clause (with proceeds xiii);
(A) Indebtedness represented by Capital Lease Obligations (other than cash or Cash Equivalents being valued at Capital Lease Obligations described in the fair market value thereof as determined by the Board of Directors of the Company in good faithfollowing clause (B)) actually received and Synthetic Lease Obligations hereafter Incurred by the Company or any of its Restricted Subsidiaries in an aggregate principal amount that, when taken together with the Remaining Present Value of such outstanding Capital Lease Obligations and Synthetic Lease Obligations relating to Sale and Leaseback Transactions, does not exceed $150,000,000 at any time outstanding and (B) Indebtedness represented by Capital Lease Obligations in connection with such dispositionthe Data Center Sale and Leaseback Transactions and the Wireless Tower Sale and Leaseback Transactions and in each case otherwise in compliance with the conditions set forth in the applicable definition thereof; provided that (x) the aggregate outstanding Remaining Present Value of (I) all leases entered into in connection with all Data Center Sale and Leaseback Transactions, plus (II) all leases entered into in connection with all Wireless Tower Sale and Leaseback Transactions, plus (y) all Indebtedness represented by Capital Lease Obligations and Synthetic Lease Obligations entered into under clause (A) does not at any time exceed $250,000,000 in the aggregate;
(xv) the Incurrence of other Indebtedness not to exceed $100,000,000 in aggregate principal amount at any time outstanding; and
(xixvi) the incurrence Incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse (other than pursuant to representations, warranties, covenants, indemnities and performance guarantees customarily entered into in connection with a Receivables financing) to the Company or to any Restricted Subsidiary of the Company or their its assets (other than such Receivables Subsidiary and its subsidiaries and assets), in an amount not to exceed $150,000,000 in aggregate principal amount at any time outstanding.
(c) For purposes of determining compliance with this Section 5.04, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in Sections 5.04(b)(i) through (xvi) or is entitled to be Incurred pursuant to Section 5.04(a), the Company shall, in its sole discretion, classify (or later reclassify) such item of Indebtedness in any manner that complies with this Section 5.04 and will only be required to include the amount and type of such Indebtedness in one of such clauses of Section 5.04(b) or pursuant to Section 5.04(a); provided that Indebtedness outstanding under the Credit Agreement as of the Closing Date shall be deemed to have been Incurred pursuant to clause (vii) of Section 5.04(b). Accrual of interest, accretion of accreted value, amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms as the Indebtedness on which such interest is not guaranteed by any such Person. Notwithstanding being paid and any other provision issuance of securities paid-in-kind shall not be deemed to be an Incurrence of Indebtedness for purposes of this covenantSection 5.04, a Guarantee but such amounts shall be included in Consolidated Adjusted Debt to the extent provided for in such definition. In addition, the Company may, at any time, change the classification of an item of Indebtedness (or any portion thereof) to any other clause of Section 5.04(b) or to Indebtedness properly Incurred under Section 5.04(a), provided that the Company would be permitted by to Incur such item of Indebtedness (or portion thereof) pursuant to such other clause of Section 5.04(b) or Section 5.04(a), as the terms case may be, at such time of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtednessreclassification.
Appears in 1 contract
Sources: Indenture (Cincinnati Bell Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall Borrower will not, and shall will not permit any of its Subsidiaries and Unrestricted 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 Indebtedness) , and the Company shall Borrower will not issue any Disqualified Stock and shall will not permit any of its Subsidiaries and Unrestricted Subsidiaries to issue any shares of preferred stock; provided, however, that .
(b) The provisions of Section 6.03(a) hereof will not prohibit the Company may incur incurrence of any of the following items of Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) the 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 such Disqualified Stock is issued would have been at least 2 to 1collectively, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall not apply to:“Permitted Debt”):
(i) the incurrence by the Company of Senior Revolving Debt and reimbursement obligations in respect of letters of credit Indebtedness (and Guarantees thereof by thereof) existing on the Petition Date (other than Indebtedness of foreign Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries that are Subsidiary Guarantors with respect thereto) not to exceed an amount equal to $25,000,000Borrower);
(ii) Indebtedness created hereunder and under the incurrence by the Company and its Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notesother Loan Documents;
(iii) the The incurrence by the Company of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary Guarantees;
(iv) the incurrence by the Company Borrower or any of its Subsidiaries of Indebtedness represented by Capital Capitalized Lease Obligations, mortgage financings or Purchase Money Obligationspurchase money obligations, in each case case, incurred for the purpose of financing all or any part of the purchase price or cost of construction design, construction, installation or improvement of property property, plant or equipment used in the business of the Company Borrower or such Subsidiaryany of its Subsidiaries, in an aggregate principal amount amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (iii), not to exceed $10,000,000 5,000,000 at any time outstanding;
(viv) the incurrence by the Company Borrower or any of its Subsidiaries of Permitted Refinancing Indebtedness Bank Product Obligations in exchange for, or the net proceeds ordinary course of which are used to extend, refinance, renew, replace, defease or refund, Indebtedness that was permitted by this Indenture to be incurred;
(vi) the incurrence by the Company or any of its Wholly Owned Subsidiaries of intercompany Indebtedness between or among the Company business and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Subsidiaries; provided, however, that (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than a Wholly Owned Subsidiary and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(vii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors 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 this Indenture to be incurred;
(viii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(x) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; and
(xi) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse entered into prior to the Company Petition Date in order to manage existing or to any Subsidiary of the Company anticipated interest rate, exchange rate or their assets (other than such Receivables Subsidiary commodity price risks and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtedness.for speculative purposes;
Appears in 1 contract
Sources: Restructuring Support Agreement (Pyxus International, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall Seven Seas will not, and shall will not permit any of its Subsidiaries and Unrestricted 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 Indebtedness) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) the 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 such Disqualified Stock is issued would have been at least 2 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall not apply to:
(i) the incurrence by Seven Seas and the Company Guarantors, if any, of Senior Revolving Debt Indebtedness under the Credit Facility not exceeding the greater of (a) $25.0 million and reimbursement obligations in respect (b) the Borrowing Base, less any amounts derived from Asset Sales and applied to the required permanent reduction of letters of credit such Indebtedness (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability permanent reduction of the Company and its Subsidiaries that are Subsidiary Guarantors with respect theretorelated commitment to lend or in the amount available to be refinanced in the case of a revolving credit facility) not to exceed an amount equal to $25,000,000under the Credit Facility as contemplated by Section 4.10;
(ii) the incurrence by the Company and its Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) the incurrence by the Company Seven Seas and any Guarantor of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary GuaranteesNotes;
(iv) the incurrence by the Company Seven Seas or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or financings, Purchase Money ObligationsObligations or similar financing transactions relating to its properties, in each case incurred for assets and rights acquired after the purpose date of financing all or any part issue of the purchase price or cost of construction or improvement of property used in Notes, provided that the business of the Company or such Subsidiary, in an aggregate principal amount of such Indebtedness under this clause does not exceed 100% of the cost of such properties, assets and rights and provided, further, that the aggregate amount of Indebtedness incurred pursuant to exceed $10,000,000 this clause (iv) does not at any time outstandingexceed $10.0 million;
(v) the incurrence by the Company Seven Seas or any of its Subsidiaries Restricted Subsidiary of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, Indebtedness of such entity that was permitted by this Indenture to be incurred;
(vi) the incurrence by of Indebtedness of Seven Seas to a Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note and is subordinated in right of payment to the Company or any of its Wholly Owned Subsidiaries of intercompany Indebtedness between or among the Company Notes; and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Subsidiaries; provided, howeverfurther, that any subsequent
(ivii) the incurrence of Indebtedness of a Restricted Subsidiary to Seven Seas or another Restricted Subsidiary; provided that (a) any such Indebtedness is made pursuant to an intercompany note and (b) if a Guarantor incurs such Indebtedness to a Restricted Subsidiary that is not a Guarantor, such Indebtedness is subordinated in right of payment to the Subsidiary Guarantee of such Guarantor; and provided, further, that any subsequent issuance or transfer of Equity Interests that any Capital Stock of any Restricted Subsidiary to whom such Indebtedness is owed or any other event which results in any such Indebtedness being held by Restricted Subsidiary ceasing to be a Person other than a Wholly Owned Restricted Subsidiary and (ii) or any sale or other subsequent transfer of any such Indebtedness (except to a Person that is not either the Company Seven Seas or a Wholly Owned Subsidiary another Restricted Subsidiary) shall be deemed, in each case, to constitute be an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(vii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors 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 this Indenture to be incurredIndebtedness;
(viii) the incurrence by incurrence, assumption or creation of Hedging Obligations of Seven Seas or a Restricted Subsidiary pursuant to interest rate protection obligations, but only to the Company or any extent that the stated aggregate notional amounts of its Subsidiaries that are Subsidiary Guarantors such obligations do not exceed 105% of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an the aggregate principal amount at any time outstanding not to exceed of the sum Indebtedness covered by such interest rate protection obligations; the incurrence, assumption or creation of $5,000,000Hedging Obligations under currency exchange contracts entered into for the purpose of limiting risks that arise in the ordinary course of business of Seven Seas and its Subsidiaries; and the incurrence, assumption or creation of Hedging Obligations that Seven Seas or a Restricted Subsidiary enters into for the purpose of protecting its production against fluctuations in oil or natural gas prices;
(ix) the incurrence by the Company's Unrestricted Seven Seas and its Restricted Subsidiaries of Non-Recourse DebtIndebtedness in connection with one or more standby letters of credit, providedor bid, howeverperformance or surety bonds or other reimbursement obligations, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiaryin each case, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary issued in the conduct of the CompanyOil and Gas Business and not in connection with the borrowing of money or the obtaining of advances or credit, not to exceed in the aggregate at any time outstanding 5.0% of consolidated total assets of Seven Seas;
(x) issuance of any Guarantee by a Restricted Subsidiary of Seven Seas of senior Indebtedness of Seven Seas that was permitted to be incurred by under this Indenture; provided that prior to or concurrently with the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion issuance of such business, assets of a Guarantee such Restricted Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (complies with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; andSection 4.17 hereof;
(xi) the incurrence by a Receivables Subsidiary Indebtedness of Indebtedness Seven Seas or any Guarantor incurred to finance Permitted Infrastructure Investments, in an aggregate principal amount that does not to at any time exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtedness.10.0 million;
Appears in 1 contract
Sources: Indenture (Seven Seas Petroleum Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries and Unrestricted 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 Indebtedness) Debt), and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted Restricted Subsidiaries to issue any shares of preferred stock; providedPROVIDED, howeverHOWEVER, that the Company may incur Indebtedness (including Acquired IndebtednessDebt) or issue shares of Disqualified Stock and the Company's Restricted Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and (including Acquired Debt) or issue shares of preferred stock if: (i) the Fixed Charge Coverage Ratio for if the Company's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding Debt to Cash Flow Ratio at the date on which time of incurrence of such additional Indebtedness is incurred or the issuance of such Disqualified Stock is issued would have been at least 2 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issuedsuch preferred stock, as the case may be, after giving pro forma effect to such incurrence or issuance as of such date and to the use of the proceeds therefrom as if the same had occurred at the beginning of the most recently ended four full fiscal quarter period of the Company for which financial statements have been furnished or are required to be furnished to Holders of the Notes in reports pursuant to Section 4.03 hereof, would have been no greater than 6.0 to 1. The Company shall not incur any Indebtedness that is contractually subordinated in right of payment to any other Indebtedness of the Company unless such four-quarter periodIndebtedness is also contractually subordinated in right of payment to the Notes on substantially identical terms; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; providedPROVIDED, HOWEVER, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by of the Company or a Subsidiary pursuant shall be deemed to this paragraphbe contractually subordinated in right of payment to any other Indebtedness of the Company solely by virtue of being unsecured. The foregoing provisions shall first paragraph of this Section 4.09 will not apply to:to the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(i) the incurrence by the Company and its Restricted Subsidiaries of Senior Revolving Debt additional Indebtedness under Credit Facilities, in an amount up to $1.5 billion;
(ii) the incurrence by the Company and reimbursement obligations in respect its Restricted Subsidiaries of additional revolving credit Indebtedness and letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) pursuant to Credit Facilities in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries that are Subsidiary Guarantors with respect theretothereunder) at any one time outstanding not to exceed the Specified Amount as of such date of incurrence; PROVIDED that the aggregate principal amount of all Indebtedness incurred pursuant to this clause (ii) is reduced to an amount equal to outstanding balance of $25,000,0001.0 million or less for at least 30 consecutive days in each fiscal year;
(iiiii) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iiiiv) the incurrence by the Company of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary Guarantees(other than any Additional Notes);
(ivv) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or Purchase Money Obligationspurchase 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 property, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount not to exceed $10,000,000 50.0 million at any time outstanding;
(vvi) 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 extend, refinance, renew, replace, defease or refund, refinance or replace Indebtedness (other than intercompany Indebtedness and Indebtedness incurred pursuant to clauses (i) and (ii) above) that was permitted by this Indenture to be incurred;
(vivii) the incurrence by the Company or any of its Wholly Owned Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Restricted Subsidiaries; providedPROVIDED, howeverHOWEVER, that (ia) if the Company is the obligor on any such intercompany Indebtedness, such Indebtedness is, if any Default or Event of Default with respect to the Company occurs and is continuing, expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes and (b)
(1) any subsequent issuance or transfer of Equity Interests that results in any such intercompany Indebtedness being held by a Person other than the Company or a Wholly Owned Restricted Subsidiary thereof and (ii2) any sale or other transfer of any such intercompany Indebtedness to a Person that is not either the Company or a Wholly Owned Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an incurrence of such intercompany Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vii);
(viiviii) the incurrence by the Company or any of its Restricted Subsidiaries that are Subsidiary Guarantors of (a) 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 incurredincurred and (b) Currency Agreements that do not increase the Indebtedness of the Company and its Restricted Subsidiaries outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder;
(viiiix) Indebtedness in respect of performance bonds, letters of credits, surety or appeal bonds, prior to any drawing thereunder, for or in connection with pledges, deposits or payments made or given in the ordinary course of business;
(x) the incurrence guarantee by the Company or any of its Restricted Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition of the Company or a Restricted Subsidiary of the Company that was permitted to Indebtedness permitted be incurred by any other clause another provision of this paragraph) in an aggregate principal amount at Section 4.09 (including, without limiting the generality of the foregoing, the guarantee by the Company or any time outstanding not to exceed Restricted Subsidiary of the sum Company of $5,000,000Existing Indebtedness);
(ixxi) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, providedPROVIDED, howeverHOWEVER, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of 48 Indebtedness by a Restricted Subsidiary of the Company;Company that was not permitted by this clause (xi); and
(xxii) Indebtedness incurred the incurrence by the Company or any of its Restricted Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; and
(xi) the incurrence by a Receivables 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 refund, refinance or replace any Indebtedness incurred pursuant to this clause (xii), not to exceed $25,000,000 100.0 million. For purposes of determining compliance with this Section 4.09, in a Qualified Receivables Transaction the event that an item of Indebtedness (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xii) above or is without recourse entitled to be incurred pursuant to the first paragraph of this Section 4.09, the Company shall, in its sole discretion, classify (or later reclassify in whole or in part, in its sole discretion) such item of Indebtedness in any manner that complies with this Section 4.09. Accrual of interest, 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 preferred stock in the form of additional shares of the same class of preferred stock will not be deemed to any Subsidiary be an incurrence of Indebtedness or an issuance of preferred stock for purposes of this Section 4.09; PROVIDED, in each such case, that the amount thereof is included in Consolidated Indebtedness of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtednessas accrued.
Appears in 1 contract
Sources: Indenture (Six Flags Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company Borrower shall not, and shall not permit any of its Subsidiaries and Unrestricted Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liableliable with respect to, contingently or otherwise, with respect to otherwise (collectively, "incur") ), any Indebtedness (including Acquired IndebtednessDebt) and the Company Borrower shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted Restricted Subsidiaries to issue any shares of preferred stockStock; provided, however, that that, so long as no Default or Event of Default has occurred and is continuing, the Company Borrower may incur Indebtedness (including Acquired IndebtednessDebt) or issue shares of Disqualified Stock and the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: :
(i) the Casino is Operating;
(ii) the Fixed Charge Coverage Ratio for the CompanyBorrower's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 2 2.0 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; and and
(iiiii) the Weighted Average Life to Maturity of such Indebtedness is greater than the remaining Weighted Average Life to Maturity of the Note. The provisions of the first paragraph of this Section 4.5(h) shall not prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(A) so long as no Default or Event of Default shall have has occurred and be continuing or would occur as a consequence thereof; providedis continuing, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall not apply to:
(i) the incurrence by the Company of Senior Revolving Debt and reimbursement obligations in respect of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries that are Subsidiary Guarantors with respect thereto) not to exceed an amount equal to $25,000,000;
(ii) the incurrence by the Company and its Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) the incurrence by the Company Borrower of Indebtedness represented by the Notes and by Note on the Subsidiaries of Indebtedness represented by the Subsidiary GuaranteesClosing Date;
(ivB) without regard for whether a Default has occurred and is continuing or would be caused by such payment, the issuance by the Borrower of the Exchange Notes to be issued pursuant to the Registration Rights Agreement or the incurrence by the Company Borrower and its Restricted Subsidiaries of obligations arising under the Hyatt Gaming Collateral Documents, to the extent that such obligations would constitute Indebtedness;
(C) so long as no Default or Event of Default has occurred and is continuing or would be caused by such payment, the incurrence by the Borrower or any of its 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 used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $10,000,000 at any time outstanding;
(v) 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 extend, refinance, renew, replace, defease or refund, Indebtedness that was permitted by this Indenture Agreement to be incurredincurred under the first paragraph of this Section 4.5(h) or clause (K) of this Section 4.5(h);
(viD) without regard for whether a Default has occurred and is continuing or would be caused by such payment, the incurrence by the Company Borrower or any of its Wholly Owned Restricted Subsidiaries of intercompany Indebtedness between or among the Company Borrower and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Restricted Subsidiaries; provided, however, that (i) that:
1. such Indebtedness is expressly subordinate to the payment in full of all Obligations with respect to the Note;
2. any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Borrower or a Wholly Owned Restricted Subsidiary and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company Borrower or a Wholly Owned Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company Borrower or such Wholly Owned Restricted Subsidiary, as the case may be; and
3. if any Restricted Subsidiary is the obligor on such Indebtedness, such Indebtedness is represented by a Subsidiary Intercompany Note that is pledged to the Lender as security for the Note;
(viiE) without regard for whether a Default has occurred and is continuing or would be caused by such payment, the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors Borrower of Hedging Obligations that (a) 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 Agreement to be incurredincurred by the Borrower under clause (I) below and (b) are on terms approved by Lender (which approval shall not be unreasonably withheld);
(viiiF) so long as no Default or Event of Default has occurred and is continuing, the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors Borrower of Indebtedness (solely in addition to Indebtedness permitted by any other clause respect of this paragraph) City Improvement Bonds in an aggregate principal amount (or accreted value, as applicable) at any time outstanding not to exceed the sum of Three Million Dollars ($5,000,0003,000,000);
(ixG) so long as no Default or Event of Default has occurred and is continuing, the incurrence by the Company's Unrestricted Subsidiaries Borrower of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases solely in respect of standby letters of credit or surety bonds required to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of issued under the Company;
Excavation Agreement (xa) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; and
(xi) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed the lesser of: one hundred ten percent (110%) of the cost of the remaining work to be performed thereunder or Seven Million Five Hundred Thousand Dollars ($25,000,000 7,500,000) and (b) on terms approved by Lender, which approval shall not be unreasonably withheld;
(H) so long as no Default or Event of Default has occurred and is continuing, the incurrence by the Borrower of Indebtedness solely in a Qualified Receivables Transaction respect of performance or similar bonds or standby letters of credit; provided that any such bond or standby letter of credit is without recourse incurred in the ordinary course of the Borrower's business pursuant to the Company Public Improvements Performance Guarantee pursuant to paragraph 11 of the Subdivision Agreement or the Bench Excavation Permit Remediation in an aggregate principal amount not to exceed Two Million Dollars ($2,000,000) at any one time outstanding; and provided, further, that any such bond or standby letter of credit is incurred on terms customary for operations similar to the Borrower's [and, provided, further that such Indebtedness shall be reduced in an amount and to the extent that funds are disbursed to the City of Blackhawk pursuant to such Subdivision Agreement or Bench Excavation Permit Remediation];
(I) so long as no Default or Event of Default has occurred and is continuing, the incurrence by the Borrower of FF&E Financing with the consent of Lender, or as to which such right of consent is waived (which consent or waiver thereof shall not be unreasonably withheld); provided, however, that (a) the principal amount of such Indebtedness does not exceed the cost (including sales and excise taxes, installation and delivery charges and other direct costs of, and other direct expenses paid or charged in connection with, such purchase) of the FF&E purchased or leased with the proceeds thereof, (b) no Indebtedness incurred under the Note is utilized for the purchase or lease of such FF&E, (c) the aggregate principal amount of such Indebtedness does not exceed Twenty Million Eight Hundred Thousand Dollars ($20,800,000) outstanding at any time; and (d) the payment of interest and principal shall be amortized over at least a four-year period from the date of issuance, with payments to be applied first to interest and then to principal on a monthly (or less frequent) basis, which monthly (or less frequent) payments shall not exceed Six Hundred Thousand Dollars ($600,000) per month (or proportionately greater amount for less frequent payments);
(J) so long as no Default or Event of Default has occurred and is continuing, the incurrence by the Borrower of Indebtedness or the issuance by the Borrower of Disqualified Stock solely to finance the construction of a hotel, parking structure and related facilities at the Casino during the first Operating Year, so long as the Fixed Charge Coverage Ratio for the Borrower's most recently ended two full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 2.0 to 1, determined on a pro forma basis, as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such two-quarter period;
(K) without regard for whether a Default has occurred and is continuing or would be caused by such payment, bond or surety obligations posted by the Borrower or any of its Restricted Subsidiaries in order to prevent the loss or material impairment of or to obtain a Gaming License or as otherwise required by an order of any Subsidiary of Gaming Authority to the Company or their assets (other than extent required by applicable law and consistent in character and amount with customary industry practice so long as such Receivables Subsidiary and its assets)Indebtedness does not result in, and is not guaranteed secured by, a Lien on any of the Hyatt Gaming Collateral;
(L) so long as no Default or Event of Default has occurred and is continuing the incurrence by the Borrower or any of its Restricted Subsidiaries of additional Indebtedness in aggregate principal amount not to exceed Five Million Dollars ($5,000,000); provided that such PersonIndebtedness has terms, and is subordinated in right of payment to the payment in full in cash of the Note pursuant to terms, approved by Lender, or as to which such right of approval is waived (which approval shall not be unreasonably withheld);
(M) so long as no Default or Event of Default has occurred and is continuing the incurrence by the Borrower of the Senior Notes as in effect on the Closing Date;
(N) without regard for whether a Default has occurred and is continuing or would be caused by such payment, the incurrence by the Borrower of Gaming Redemption Indebtedness as a result of any Gaming Redemption; provided that such Indebtedness has terms, and is subordinated in right of payment in full in cash of the Note pursuant to terms, approved by Lender, or as to which such right of approval is waived (which approval shall not be unreasonably withheld); and
(O) so long as no Default or Event of Default has occurred and is continuing the incurrence by the Borrower of Additional Senior Notes issued to The Ravich Revocable Trust of 1989 or Affiliates of the foregoing in the aggregate principal amount not to exceed Five Million Dollars ($5,000,000); provided that such Indebtedness is used solely to finance the completion of the development, construction and initial equipment (other than equipment secured by or purchased with the proceeds of any FF&E Financing) of the Casino prior to the Operating of the Casino; provided, further, that the Construction Disbursement Account and the Hyatt Gaming Construction Disbursement Account have been depleted and less than Four Million Dollars ($4,000,000) of aggregate proceeds remains in the Completion Reserve Account and the Hyatt Gaming Completion Reserve Account and the Borrower reasonably believes that the funds remaining in the Completion Reserve Account and the Hyatt Gaming Completion Reserve Account will not be sufficient to finance completion of the development, construction and initial equipment (other than equipment secured by or purchased with the proceeds of any FF&E Financing) of the Casino sufficient for the Casino to begin Operating; and provided, further, that the Borrower reasonably believes that the incurrence of such additional Indebtedness will provide proceeds to the Borrower that are sufficient to finance the completion of the development, construction and initial equipment of the Casino sufficient for the Casino to begin Operating. Notwithstanding The Borrower shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other provision Indebtedness of the Borrower unless such Indebtedness is also contractually subordinated in right of payment to the Note on substantially identical terms; provided, however, that no Indebtedness of the Borrower shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Borrower solely by virtue of being secured. For purposes of determining compliance with this Section 4.5(h), 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 (A) through (O) above, or is entitled to be incurred pursuant to the first paragraph of this covenant, a Guarantee Section 4.5(h) the Borrower will be permitted to classify such item of Indebtedness permitted by on the terms date of its incurrence in any manner that complies with this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of IndebtednessSection 4.5(h).
Appears in 1 contract
Sources: Subordinated Loan Agreement (Windsor Woodmont Black Hawk Resort Corp)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company Borrower shall not, and shall not permit any of its Subsidiaries and Unrestricted 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 IndebtednessDebt) and the Company Borrower shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted Restricted Subsidiaries to issue any shares of preferred stockDisqualified Stock or Preferred Stock; provided, however, provided that the Company Borrower or any of its Restricted Subsidiaries may incur Indebtedness (including Acquired Indebtedness) or , the Borrower may issue shares of Disqualified Stock and subject to the Company's final paragraph of this covenant below, Restricted Subsidiaries that are Subsidiary Guarantors of the Borrower may incur Indebtedness issue Preferred Stock if the Leverage Ratio of the Borrower and issue preferred stock if: (i) the 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 such Disqualified Stock is issued its Restricted Subsidiaries would have been at least 2 not greater than 4.5 to 1, 1.0 determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock or Preferred Stock had been issued, as the case may be, at the beginning of such four-quarter period; and (ii) the most recently ended fiscal quarter. So long as no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; providedbe caused thereby, that no Guarantee may be incurred pursuant to the first paragraph of this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions covenant shall not apply to:prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):
(i1) the incurrence by the Company Borrower and its Restricted Subsidiaries of Senior Revolving Debt and reimbursement obligations in respect of letters of credit (and Guarantees thereof by Subsidiaries Indebtedness under Credit Facilities; provided that are Subsidiary Guarantors) in an the aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability all Indebtedness of the Company Borrower and its Restricted Subsidiaries that are Subsidiary Guarantors with respect theretooutstanding under this clause (1) for all Credit Facilities of the Borrower and its Restricted Subsidiaries after giving effect to such incurrence does not to exceed an amount equal to $25,000,0009.75 billion less the aggregate amount of all Net Proceeds from Asset Sales applied by the Borrower or any of its Restricted Subsidiaries to repay any such Indebtedness under a Credit Facility pursuant to Section 6.10;
(ii2) the incurrence by the Company Borrower and its Restricted Subsidiaries of the Existing Indebtedness, including the Senior Subordinated NotesIndebtedness (other than under Credit Facilities);
(iii3) the incurrence by the Company Borrower and the Guarantor of Indebtedness under this Agreement, and any refinancings thereof represented by the Exchange Notes and by any Securities (as defined in the Subsidiaries of Indebtedness represented by the Subsidiary GuaranteesFee Letter);
(iv4) the incurrence by the Company Borrower or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or Purchase Money Obligationspurchase money obliga- tions, in each case case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement (including the cost of property used in the business design, development, construction, acquisition, transportation, installation, improvement, and migration) of Productive Assets of the Company Borrower or such Subsidiaryany of its Restricted Subsidiaries, in an aggregate principal amount not to exceed exceed, together with any related Permitted Refinancing Indebtedness permitted by clause (5) below, $10,000,000 75 million at any time outstanding;
(v5) the incurrence by the Company Borrower or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extendrefund, refinance, renew, refinance or replace, defease in whole or refundin part, Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture Agreement to be incurredincurred under this clause (5), the first paragraph of this covenant or clauses (2), (3) or (4) of this paragraph;
(vi6) the incurrence by the Company Borrower or any of its Wholly Owned Restricted Subsidiaries of intercompany Indebtedness between or among the Company Borrower and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Restricted Subsidiaries; providedprovided that:
(a) if the Borrower is the obligor on such Indebtedness, however, that such Indebtedness must be expressly subordinated to the prior payment in full in cash of all obligations with respect to the Loans; and
(i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Borrower or a Wholly Owned Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company Borrower or a Wholly Owned Restricted Subsidiary thereof, shall be deemed, in each case, to constitute an incurrence of such Indebtedness that was not permitted by the Company or such Subsidiary, as the case may bethis clause (6);
(vii7) the incurrence by the Company Borrower or any of its Restricted Subsidiaries that are Subsidiary Guarantors 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 Agreement to be incurredoutstanding;
(viii8) the guarantee by the Borrower or any of its Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary of the Borrower that was permitted to be incurred by another provision of this Section 6.9;
(9) the incurrence by the Company Borrower or any of its Restricted Subsidiaries that are Subsidiary Guarantors of additional Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding under this clause (9), not to exceed the sum of $5,000,000;300 million; and
(ix10) the incurrence by accretion or amortization of original issue discount and the Company's Unrestricted Subsidiaries write up of Non-Recourse DebtIndebtedness in accordance with purchase accounting. For purposes of determining compliance with this Section 6.9, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event under Credit Facilities outstanding on the Closing Date shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
have been incurred pursuant to clause (x1) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisitionabove and, in a principal amount not to exceed 25% the event that an item of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; and
(xi) the incurrence by a Receivables Subsidiary of proposed Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and any Indebtedness initially deemed on the Closing Date to be incurred under clause (1) above) (a) meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (10) above or (b) is not guaranteed by any such Person. Notwithstanding any other provision entitled to be incurred pursuant to the first paragraph of this covenant, a Guarantee the Borrower shall be permitted to classify and from time to time to reclassify such item of Indebtedness permitted by the terms of in any manner that complies with this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtedness.cove-
Appears in 1 contract
Sources: Senior Bridge Loan Agreement (Charter Communications Inc /Mo/)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries and Unrestricted 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 IndebtednessDebt) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness (including Acquired IndebtednessDebt) or and issue shares of Disqualified Stock and if (a) the Company's Subsidiaries that are Subsidiary Guarantors may incur Debt to Cash Flow Ratio at the time of incurrence of such Indebtedness or the issuance of such Disqualified Stock, after giving pro forma effect to such incurrence or issuance as of such date and issue preferred stock if: (i) to the Fixed Charge Coverage Ratio for use of proceeds therefrom as if the Company's same had occurred at the beginning of the most recently ended four full fiscal quarters quarter period of the Company for which internal financial statements are available immediately preceding available, would have been no greater than 4 to 1 and (b) the date on which Company's Fixed Charge Coverage Ratio at the time of incurrence of such additional Indebtedness is incurred or the issuance of such Disqualified Stock is issued Stock, after giving pro forma effect to such incurrence or issuance as of such date and to the use of proceeds therefrom as if the same had occurred at the beginning of the most recently ended four full fiscal quarter periods of the Company for which internal financial statements are available, would have been at least 2 2.75 to 1, determined on a pro forma basis (including a pro forma application ; provided that after the occurrence of the net proceeds therefrom)Triggering Event, the Convertible Notes shall not be included as if Indebtedness for purposes of calculating the additional Indebtedness had been incurred, Company's Debt to Cash Flow Ratio or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraphCompany's Fixed Charge Coverage Ratio. The foregoing provisions shall of the first paragraph of this Section 4.09 will not apply to:to the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(i) the incurrence by the Company of Senior Revolving Debt and reimbursement obligations in respect Indebtedness under Credit Facilities; provided that the aggregate principal amount of all Indebtedness (with outstanding letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries that are Subsidiary Guarantors with respect theretothereunder) outstanding under all Credit Facilities after giving effect to such incurrence, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (i), does not to exceed an amount equal to $25,000,00010 million less the aggregate amount of all Net Proceeds of Asset Sales that have been applied since the date of this Indenture to repay Indebtedness under Credit Facilities (or any such Permitted Refinancing Indebtedness) pursuant to Section 4.10 hereof;
(ii) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) the incurrence by the Company of Indebtedness represented by (A) the Notes issued as part of the Initial Units and by (B) additional Notes issued pursuant to the Subsidiaries exercise of Indebtedness represented by the Subsidiary GuaranteesOption in an amount not to exceed $20 million in aggregate principal amount at maturity;
(iv) the incurrence by the Company or any Restricted Subsidiary of the Company of up to $25 million in aggregate principal amount of Vendor Indebtedness; provided that (A) to the extent such Vendor Indebtedness is incurred for any purpose other than financing the cost of subscriber units, the aggregate principal amount (or accreted value, as applicable) of such Vendor Indebtedness does not exceed, as of the date of incurrence thereof, the lesser of 75% of (1) the fair market value (as determined in good faith by the Board of Directors and set forth in an Officers' Certificate delivered to the Trustee) of the assets purchased with the proceeds of such Vendor Indebtedness and (2) the cost of such assets and (B) to the extent such Vendor Indebtedness is incurred to finance the cost of subscriber units, the aggregate principal amount (or accreted value, as applicable) of such Vendor Indebtedness does not exceed, as of the date of incurrence thereof, the lesser of 100% of the fair market value of such subscriber units (as determined in good faith by the Board of Directors and set forth in an Officers' Certificate delivered to the Trustee) and the cost of such subscriber units;
(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 Subsidiary prior to such acquisition by the Company and was not incurred in connection with, or in contemplation of, such acquisition by the Company; and provided further that the principal amount (or accreted value, as applicable) of such Indebtedness, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (v), does not exceed (A) $8 million less (B) the principal amount (or accreted value, as applicable) of Indebtedness outstanding pursuant to clause (vi) below at any time outstanding;
(vi) the incurrence by the Company of Indebtedness represented by Capital Lease ObligationsCompany Notes incurred substantially simultaneously with, mortgage financings or Purchase Money Obligations, in each case incurred and for the purpose of financing all or any part of the purchase price or cost of construction any acquisition of assets or improvement a new Restricted Subsidiary; provided that the principal amount (or accreted value, as applicable) of property used in such Indebtedness, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (vi), does not exceed the business amount equal to (A) $8 million less (B) the principal amount (or accreted value, as applicable) of Indebtedness outstanding pursuant to clause (v) above;
(vii) the incurrence by the Company of Indebtedness represented by Convertible Notes incurred simultaneously with the date of this Indenture;
(viii) Indebtedness of the Company or not to exceed, at any one time outstanding, the net cash proceeds received by the Company after the date of this Indenture from the issuance and sale of its Qualified Capital Stock to the extent that such Subsidiarynet cash proceeds have been, and continue to be, designated as Designated Equity Proceeds to be used for the purpose of incurring additional Indebtedness pursuant to this clause (viii) as provided in an aggregate principal amount the definition thereof, not to exceed $10,000,000 at any time outstanding50 million;
(vix) 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 extend, refinance, renew, replace, defease or refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred;
(vix) the incurrence by the Company or any of its Wholly Owned Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Restricted Subsidiaries; provided, however, that (iA) if the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes and (B)(1) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Wholly Owned Restricted Subsidiary and (ii2) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Restricted Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be;
(vii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors 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 this Indenture to be incurred;
(viii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000;
(ixxi) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, ; provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Company;; and
(xxii) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Restricted Subsidiary of the Company for (A) in respect of statutory obligations, performance, surety or appeal bonds or other obligations of a like nature incurred in the purpose ordinary course of financing business, (B) under Hedging Obligations; provided that such acquisitionagreements (1) are designed solely to protect the Company or its Restricted Subsidiaries against fluctuations in foreign currency exchange rates or interest rates and (2) do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder. For purposes of determining compliance with this Section 4.09, in a principal amount not to exceed 25% the event that an item of Indebtedness meets the criteria of more than one of the gross proceeds categories of Permitted Debt described in clauses (i) through (xii) above or is entitled to be incurred pursuant to the first paragraph of this Section 4.09, the Company shall, in its sole discretion, classify such item of Indebtedness in any manner that complies with proceeds this Section 4.09 and such item of Indebtedness shall be treated as having been incurred pursuant to only one of such clauses or pursuant to the first paragraph hereof. Accrual of interest and the accretion of accreted value shall not be deemed to be an incurrence of Indebtedness for purposes of this Section 4.09. Notwithstanding the foregoing, the Company shall not incur any Indebtedness that is contractually subordinated to any other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors Indebtedness of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with unless such disposition; and
(xi) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse also contractually subordinated to the Company or to any Subsidiary Notes on substantially identical terms; provided, however, that no Indebtedness of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding shall be deemed to be contractually subordinated to any other provision Indebtedness of this covenant, a Guarantee the Company solely by virtue of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtednessbeing unsecured.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company Borrower shall not, and shall not permit any of its Subsidiaries and Unrestricted 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, "incurINCUR") any Indebtedness (including Acquired Indebtedness) and the Company shall not issue any Disqualified Stock and shall ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ll not permit any of its Subsidiaries and Unrestricted Restricted Subsidiaries to issue any shares of preferred stock; providedPROVIDED, howeverHOWEVER, that the Company Borrower may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and if the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) the Fixed Charge Consolidated Interest Coverage Ratio for the CompanyBorrower's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 2 2.0 to 1, determined 1.0 on a pro forma PRO FORMA basis (including a pro forma PRO FORMA application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, incurred at the beginning of such four-quarter period; and . Notwithstanding the foregoing, the Borrower and, to the extent set forth below, its Restricted Subsidiaries may incur the following (ii) no Default or Event each of Default which shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall not apply to:given independent effect):
(ia) Indebtedness of the incurrence by the Company of Senior Revolving Debt Borrower and reimbursement obligations its Subsidiaries in respect of letters of credit (the Term Loans and Guarantees thereof by Subsidiaries that are the Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company Guaranty and its Subsidiaries that are Subsidiary Guarantors with respect thereto) not to exceed an amount equal to $25,000,000all other Obligations;
(iib) Permitted Working Capital Indebtedness of the incurrence by the Company Borrower and its Subsidiaries of the Existing Indebtedness, including the Senior Subordinated NotesRestricted Subsidiaries;
(iiic) Existing Indebtedness (other than Permitted Working Capital Indebtedness or Indebtedness under the incurrence by the Company Letter of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary GuaranteesCredit Facility);
(ivd) Indebtedness of the incurrence by Borrower and its Restricted Subsidiaries under the Company or any Letter of its Subsidiaries of Indebtedness represented by Credit Facility;
(e) Capital Expenditure Indebtedness, Capital Lease Obligations, mortgage financings or Purchase Money Obligations, in each case incurred for the purpose of financing all or any part Obligations and purchase money Indebtedness of the purchase price or cost of construction or improvement of property used in the business of the Company or such Subsidiary, Borrower and its Restricted Subsidiaries in an aggregate principal amount not to exceed $10,000,000 50,000,000 at any time outstanding;
(vi) Hedging Obligations of the Borrower and its Restricted Subsidiaries covering Indebtedness of the Borrower or such Restricted Subsidiary (which Indebtedness is otherwise permitted to be incurred under this covenant) to the extent the notional principal amount of any such Hedging Obligation does not exceed the principal amount of the Indebtedness to which such Hedging Obligation relates; or (ii) repurchase agreements, reverse repurchase agreements or similar agreements relating to marketable direct obligations issued or unconditionally guaranteed by the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition; provided that the terms of such agreements comply with the guidelines set forth in Federal-Financial Agreements of Depository Institutions with Securities and Others (or any successor guidelines), as adopted by the Comptroller of the Currency;
(g) Indebtedness of the Borrower and its Restricted Subsidiaries in an aggregate principal amount not to exceed $30,000,000 at any time outstanding;
(h) Indebtedness of the Borrower representing guarantees of Indebtedness incurred by one of its Restricted Subsidiaries pursuant to, and in compliance with, another provision of this covenant;
(i) Indebtedness of the Borrower or any of its Restricted Subsidiaries representing guarantees of a portion of the Indebtedness of Wheeling-Nisshin which is not greater than the Borrower's or such Restricted Subsidiary's PRO RATA ownership of the outstanding Equity Interests in Wheeling- Nisshin; PROVIDED, HOWEVER, that (i) such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Term Loans and (ii) at the time of incurrence and after giving effect to the Indebtedness of Wheeling-Nisshin which is being guaranteed, the Consolidated Interest Coverage Ratio of Wheeling-Nisshin for its most recently ended four full fiscal quarters for which internal financial statements are available would have been at least 2.0 to 1.0, determined on a PRO FORMA basis as if any additional Indebtedness had been incurred at the beginning of such four-quarter period;
(j) Indebtedness of the Borrower or its Restricted Subsidiaries representing guarantees of Indebtedness of Wheeling-Nisshin required to be made pursuant to the Letter of Undertaking not to exceed $10,000,000;
(k) the incurrence by the Company Borrower or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, Indebtedness that was permitted by this Indenture to be incurred;
(vi) the incurrence by the Company or any of its Wholly Owned Restricted Subsidiaries of intercompany Indebtedness between or among the Company Borrower and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Restricted Subsidiaries; providedPROVIDED, howeverHOWEVER, that (i) if the Borrower is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations and (ii) (A) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Borrower or a Wholly Owned Restricted Subsidiary and (iiB) any sale or other transfer of any such Indebtedness to a Person that is not either the Company Borrower or a Wholly Owned Restricted Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company Borrower or such Restricted Subsidiary, as the case may be;
(viil) Indebtedness of the Borrower evidenced by the 1997 Senior Notes and the Indebtedness of the Subsidiary Guarantors in respect of guarantees of such 1997 Senior Notes; and .
(m) any Permitted Refinancing Indebtedness representing a replacement, renewal, refinancing or extension of Indebtedness permitted under the first sentence of this Section and CLAUSES (C) and (L) of this Section. In the event that the incurrence by the Company or of any of its Subsidiaries that are Subsidiary Guarantors 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 would be permitted by this Indenture Section, the Borrower may designate (in the form of an officer's certificate delivered to be incurred;
(viiithe Administrative Agent) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other particular clause of this paragraph) in an aggregate principal amount at any time outstanding not Section pursuant to exceed the sum of $5,000,000;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any which it is incurring such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(x) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; and
(xi) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtedness.
Appears in 1 contract
Sources: Term Loan Agreement (Wheeling Pittsburgh Corp /De/)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company Holdings shall not, and shall not permit any of its Subsidiaries and Unrestricted 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 Indebtedness) and the Company shall that Holdings will not issue any Disqualified Stock and shall will not permit any of its Subsidiaries and Unrestricted Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company Issuers may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and the Company's Holdings' Restricted Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and or issue shares of preferred stock if: if (i) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the incurrence of any such Indebtedness or the issuance of any such Disqualified Stock, and (ii) the Consolidated Fixed Charge Coverage Ratio for the Company's Holdings' most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued Four- Quarter Period would have been at least 2 1.75 to 11.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such fourFour-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraphQuarter Period. The foregoing provisions shall of the first paragraph of this covenant will not apply to:to the incurrence of any of the following items of Indebtedness (collectively, "Permitted Indebtedness"):
(i) the incurrence of Indebtedness under this Indenture, including that represented by the Company Debentures; the incurrence of Senior Revolving Debt Indebtedness under the Old Debenture Indenture, including that represented by the Old Debentures; the incurrence of Indebtedness under the Old Note Indenture, including that represented by the Old Notes (including any Guarantees thereunder), the incurrence of Indebtedness under the New Note Indenture including that represented by the New Notes (including any Guarantees thereunder);
(ii) the incurrence by Holdings and reimbursement obligations in respect its Restricted Subsidiaries of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) Indebtedness incurred pursuant to one or more Credit Facilities in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company Holdings and its Subsidiaries that are Subsidiary Guarantors with respect theretothereunder) not to exceed an the amount equal to $25,000,000;
(ii) of any and all obligations now or hereafter arising under the incurrence by the Company and its Subsidiaries of the Existing Indebtedness, including the Senior Subordinated NotesCredit Facilities in accordance with their terms;
(iii) the incurrence by the Company of Indebtedness represented by the Notes Holdings and by the its Restricted Subsidiaries of Indebtedness represented by the Subsidiary Guaranteesunder Currency Agreements;
(iv) the incurrence by the Company or any of Holdings and 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 used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $10,000,000 at any time outstandingExisting Indebtedness;
(v) the incurrence by the Company or Interest Swap Obligations of Holdings and its Restricted Subsidiaries covering Indebtedness of Holdings and its Restricted Subsidiaries; provided that any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of to which are used to extend, refinance, renew, replace, defease or refund, Indebtedness that was any such Interest Swap Obligations correspond is otherwise permitted by this Indenture to be incurredincurred under this Indenture; and provided, further, that such Interest Swap Obligations are entered into, in the judgment of Holdings, to protect Holdings and its Restricted Subsidiaries from fluctuation in interest rates on its outstanding Indebtedness;
(vi) the incurrence by the Company Holdings or any of its Wholly Owned Restricted Subsidiaries of intercompany Indebtedness between or among the Company Holdings and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Restricted Subsidiaries; provided, however, that (i) if Holdings is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Debentures and (ii)(A) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Holdings or a Wholly Owned Subsidiary thereof and (iiB) any sale or other transfer of any such Indebtedness to a Person that is not either the Company Holdings or a Wholly Owned Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company Holdings or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi);
(vii) the incurrence by of Acquired Indebtedness of Restricted Subsidiaries of Holdings to the Company or any extent Holdings could have incurred such Indebtedness in accordance with the first paragraph of its Subsidiaries that are Subsidiary Guarantors of Hedging Obligations that are incurred for this covenant on the purpose of fixing or hedging interest rate risk with respect to any floating rate date such Indebtedness that is permitted by this Indenture to be incurredbecame Acquired Indebtedness;
(viii) the incurrence Guarantees by the Company Holdings and its Restricted Subsidiaries of each other's Indebtedness; provided that such Indebtedness is permitted to be incurred under this Indenture;
(ix) Indebtedness (including Capitalized Lease Obligations) incurred by Holdings or any of its Restricted Subsidiaries that are Subsidiary Guarantors to finance the purchase, lease or improvement of Indebtedness property (in addition to Indebtedness permitted by real or personal) or equipment (whether through the direct purchase of assets or the Capital Stock of any other clause of this paragraphPerson owning such assets) in an aggregate principal amount at any time outstanding not to exceed 5% of Total Assets at the sum time of $5,000,000;
any incurrence thereof (ixincluding any Refinancing Indebtedness with respect thereto) (which amount may, but need not, be incurred in whole or in part under the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the CompanySenior Credit Facilities);
(x) the incurrence of Indebtedness incurred (including letters of credit) in respect of workers' compensation claims, self-insurance obligations, performance, surety, bid or similar bonds and completion guarantees provided by Holdings or a Restricted Subsidiary in the Company or any ordinary course of its Subsidiaries that is a Subsidiary Guarantor business and consistent with past practices;
(xi) Indebtedness arising from agreements of Holdings or a Restricted Subsidiary of Holdings providing for indemnification, adjustment of purchase price price, earn out or other similar obligations, in each case, incurred or from assumed in connection with the disposition of any business, assets or a Restricted Subsidiary of Holdings, other than guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries Indebtedness incurred by any Person acquiring all or a any portion of such business, assets of a or Restricted Subsidiary of the Company for the purpose of financing such acquisition, ; provided that the maximum assumable liability in a principal amount not to respect of all such Indebtedness shall at no time exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of Holdings and its Restricted Subsidiaries in connection with such disposition;
(xii) obligations in respect of performance and surety bonds and completion guarantees provided by Holdings or any Restricted Subsidiary of Holdings in the ordinary course of business;
(xiii) any refinancing, modification, replacement, renewal, restatement, refunding, defeasance, deferral, extension, substitution, supplement, reissuance or resale of existing or future Indebtedness (other than intercompany Indebtedness), including any additional Indebtedness incurred to pay interest or premiums required by the instruments governing such existing or future Indebtedness as in effect at the time of issuance thereof ("Required Premiums") and fees in connection therewith ("Refinancing Indebtedness"); provided that (1) any such event shall not directly or indirectly result in an increase in the aggregate principal amount of Permitted Indebtedness (except to the extent such increase is a result of a simultaneous incurrence of additional Indebtedness (A) to pay Required Premiums and related fees or (B) otherwise permitted to be incurred under this Indenture) of Holdings and its Restricted Subsidiaries, (2) such Refinancing Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded, (3) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is subordinated in right of payment to the Debentures, such Refinancing Indebtedness has a final maturity date later than the final maturity date of, and is subordinated in right of payment to, the Debentures on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;
(xiv) the incurrence by Holdings or any of its Restricted Subsidiaries of additional Indebtedness and/or the issuance of Disqualified Stock in an aggregate principal amount or aggregate liquidation value, as applicable (or accreted value, as applicable), at any time outstanding, including all Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xiv), not to exceed $20 million; and
(xixv) the incurrence by a Receivables Subsidiary Securitization Entity of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Securitization Transaction that is without recourse Non-Recourse Debt (except for Standard Securitization Undertakings) with respect to Holdings and its other Restricted Subsidiaries. The Issuers shall also not incur any Indebtedness (including Permitted Indebtedness) that is contractually subordinated in right of payment to any other Indebtedness of the Issuers unless such Indebtedness is also contractually subordinated in right of payment to the Company or Debentures on substantially identical terms; provided, however, that no Indebtedness of the Issuers shall be deemed to be contractually subordinated in right of payment to any Subsidiary other Indebtedness of the Company Issuers solely by virtue of being unsecured. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (i) through (xv) above or is entitled to be incurred pursuant to the first paragraph of this Section 4.09, the Issuers shall, in their assets (other than sole discretion, classify such Receivables Subsidiary and its assets)item of 57 Indebtedness in any manner that complies with this Section 4.09. Accrual of interest, 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 is the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock shall not guaranteed by any such Person. Notwithstanding any other provision be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this covenantSection 4.09; provided, a Guarantee in each such case, that the amount thereof is included in Consolidated Fixed Charges of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of IndebtednessHoldings as accrued.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall Issuer will not, and shall will not permit any of its Subsidiaries and Unrestricted 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 Indebtedness) Debt), and the Company shall Issuer will not issue any Disqualified Stock and shall will not permit any of its Subsidiaries and Unrestricted Restricted Subsidiaries to issue any shares of preferred stockPreferred Stock; providedPROVIDED that Issuer, however, that the Company any Guarantor or any Canadian Subsidiary may incur Indebtedness (including Acquired Indebtedness) or Debt), and Issuer may issue shares of Disqualified Stock and the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) Stock, if the Fixed Charge Coverage Ratio for the CompanyIssuer's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 2 2.0 to 11.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; and period (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; providedthis proviso, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph"FIXED CHARGE COVERAGE RATIO EXCEPTION"). The foregoing provisions shall preceding paragraph will not apply to:prohibit the incurrence of any of the following (collectively, "PERMITTED DEBT"):
(i1) Indebtedness under the incurrence by the Company of Senior Revolving Debt and reimbursement obligations in respect of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding Credit Facility (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company Issuer and its Restricted Subsidiaries that are Subsidiary Guarantors with respect theretothereunder) in an aggregate principal amount outstanding pursuant to this clause (1) (including amounts outstanding on the date of this Indenture) not to exceed an the greater of (x) $310.0 million LESS the aggregate amount equal to $25,000,000;
(ii) the incurrence of all Net Proceeds of Asset Sales applied by the Company and its Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) the incurrence by the Company of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary Guarantees;
(iv) the incurrence by the Company Issuer or any of its Subsidiaries since the date of this Indenture to repay Indebtedness represented by under the Senior Credit Facility pursuant to Section 4.08 hereof and (y) the sum of 85% of the book value of accounts receivable and 65% of the book value of inventory of Issuer and its Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP; PROVIDED that the maximum amount permitted to be outstanding pursuant to this clause (1) shall not be deemed to limit additional Indebtedness under the Senior Credit Facility that is permitted to be incurred pursuant to any of the other provisions of this covenant;
(2) the Notes issued on the Issue Date, Existing Indebtedness (other than Indebtedness under the Senior Credit Facility), the Exchange Notes and the Note Guarantees thereof and, for the avoidance of doubt only, the Existing Preferred Stock (including any subsequent increase in the liquidation preference from amounts payable as dividends thereon that are not paid in cash on the scheduled payment dates);
(3) Capital Lease Obligations, mortgage financings or Purchase Money Obligationspurchase money obligations, in each case case, incurred for the purpose of financing all or any part of the purchase price or cost of construction development, construction, installation or improvement of property property, plant or equipment used in the business of the Company Issuer or such Restricted Subsidiary, and refinancings thereof, in an aggregate principal amount not to exceed $10,000,000 15.0 million at any time outstandingoutstanding pursuant to this clause (3);
(v4) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds respect of which are used to extend, refinance, renew, replace, defease or refund, Indebtedness that was permitted by this Indenture to be incurredincurred under the Fixed Charge Coverage Ratio Exception or clause (2) or (10) of this paragraph or this clause (4);
(vi5) the incurrence Indebtedness owed by the Company Issuer or any of its Wholly Owned Restricted Subsidiaries of intercompany Indebtedness between to Issuer or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Restricted Subsidiaries; provided, however, that PROVIDED that
(ia) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being owed by Issuer shall be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, and any such Indebtedness owed by any Guarantor shall be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Note Guarantee of such Guarantor; and
(b) if such Indebtedness is held by a Person other than a Wholly Owned Subsidiary and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(vii) the incurrence by the Company Issuer or any of its Subsidiaries that are Restricted Subsidiaries, Issuer or such Restricted Subsidiary Guarantors of shall be deemed to have incurred Indebtedness not permitted by this clause (5);
(6) Hedging Obligations that are incurred for the purpose of fixing or hedging (x) interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms of this Indenture to be incurredoutstanding or (y) foreign currency exchange rate risk;
(viii7) (x) the incurrence Guarantee by Issuer or any Guarantor of Indebtedness of Issuer or a Guarantor, (y) the Company Guarantee by any Canadian Subsidiary of Indebtedness of any other Canadian Subsidiary and (z) the Guarantee by any Restricted Subsidiary that is not a Guarantor or a Canadian Subsidiary 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 Section 4.11;
(8) Indebtedness incurred in respect of workers' compensation claims, self-insurance obligations, bankers' acceptances, letters of credit (not supporting Indebtedness for borrowed money), performance, surety and similar bonds and completion guarantees or similar obligations provided by Issuer or a Guarantor in the ordinary course of business;
(9) the agreements of Issuer 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 or assets of Issuer or any Restricted Subsidiary or Capital Stock of a Restricted Subsidiary; PROVIDED that the maximum aggregate liability in respect of all such obligations outstanding under this clause (9) shall at no time exceed the gross proceeds actually received by Issuer and its Restricted Subsidiaries in connection with such dispositions;
(10) Acquired Debt; PROVIDED that, with respect to any Acquired Debt incurred and outstanding pursuant to this clause (10), (x) it shall have been incurred prior to the time that the debtor thereunder was acquired by or merged into Issuer or any of its Subsidiaries Subsidiaries, or prior to the time that are Subsidiary Guarantors the related asset was acquired by Issuer or any of its Subsidiaries, and was not incurred in connection with, or in contemplation of, such acquisition or merger, and (y) either (1) the aggregate principal amount of such Acquired Debt shall not exceed $5.0 million outstanding at any time or (2) immediately after giving effect to such transaction, Issuer shall be able to incur an additional $1.00 of Indebtedness under the Fixed Charge Coverage Ratio Exception;
(11) Indebtedness secured by a mortgage or deed of trust on real property acquired by Issuer or any of its Restricted Subsidiaries for use as a new corporate headquarters, and refinancings thereof, in addition an aggregate amount not to exceed $15.0 million at any time outstanding pursuant to this clause (11);
(12) Indebtedness permitted arising from the honoring by any a bank or other clause financial institution of this paragrapha check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds;
(13) Indebtedness incurred by Foreign Subsidiaries in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000;5.0 million pursuant to this clause (13); and
(ix14) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debtadditional Indebtedness in an aggregate principal amount not to exceed $15.0 million at any time outstanding pursuant to this clause (14); PROVIDED that, providedto avoid any doubt, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(x) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such businessthe Indebtedness permitted to be incurred under this clause (14) may, assets at the option of a Subsidiary Issuer, be incurred under the Senior Credit Facility. For purposes of determining compliance with this Section 4.11, in the event that an item of Indebtedness meets the criteria of more than one of the Company for categories of Permitted Debt described in clauses (1) through (14) above, or is entitled to be incurred pursuant to the purpose of financing such acquisitionFixed Charge Coverage Ratio Exception, Issuer shall, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with sole discretion, classify such disposition; and
(xi) the incurrence by a Receivables Subsidiary item of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction any manner that is without recourse to complies with this Section 4.11 (PROVIDED that all Indebtedness under the Company or to any Subsidiary of Senior Credit Facility outstanding on the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness permitted by the terms date of this Indenture shall be deemed to have been incurred pursuant to clause (1) hereof) and may later reclassify such Indebtedness into any one or more of the categories of Permitted Debt described in clauses (1) and (3) through (14) above (PROVIDED that at the time of reclassification it meets the criteria in such Indebtedness was incurred shall not constitute a separate incurrence of Indebtednesscategory or categories).
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries to, directly or indirectly, create(a) Create, incur, issue, assume, enter into a guarantee of or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, "“incur"”) any Indebtedness (including Acquired Indebtedness) Debt), and the Company Issuer shall not issue any Disqualified Stock and shall not permit any of its the Restricted Subsidiaries and Unrestricted Subsidiaries to to, without the prior written consent of the Required Purchasers, issue any shares of preferred stock; providedstock or preferred interests.
(b) Notwithstanding anything to contrary herein, howeverSection 7.4(a) above will not prohibit the incurrence of any Permitted Debt.
(c) For the purposes of determining compliance with this Section 7.4, in the event that the Company may incur an item of proposed Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and meets the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) the 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 such Disqualified Stock is issued would have been at least 2 to 1, determined on a pro forma basis (including a pro forma application criteria of more than one of the net proceeds therefrom), as if categories of Permitted Debt described in clauses (1) through (23) of the additional Indebtedness had been incurred, definition of “Permitted Debt,” or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may is entitled to be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall not apply to:
(i) the incurrence by the Company of Senior Revolving Debt and reimbursement obligations in respect of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries that are Subsidiary Guarantors with respect thereto) not to exceed an amount equal to $25,000,000;
(ii) the incurrence by the Company and its Subsidiaries of the Existing IndebtednessSection 7.4(a), including the Senior Subordinated Notes;
(iii) the incurrence by the Company of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary Guarantees;
(iv) the incurrence by the Company or any of its 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 used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $10,000,000 at any time outstanding;
(v) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, Indebtedness that was permitted by this Indenture to be incurred;
(vi) the incurrence by the Company or any of its Wholly Owned Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Subsidiaries; provided, however, that (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than a Wholly Owned Subsidiary and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary Issuer shall be deemed, in each case, permitted to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(vii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors 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 this Indenture to be incurred;
(viii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(x) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring classify all or a portion of such businessitem of Indebtedness or Disqualified Stock on the date of its incurrence, assets or later reclassify all or a portion of a Subsidiary such item of Indebtedness or Disqualified Stock (based on circumstances existing on the date of such reclassification), in any manner that complies with this Section 7.4; provided that (x) all Indebtedness outstanding under the First Lien Notes on the Effective Date will be treated as incurred under clause (1) of the Company for definition of “Permitted Debt” and (y) all Indebtedness represented by Existing Notes and outstanding on the purpose Effective Date will be treated as incurred under clause (2) of financing such acquisitionthe definition of “Permitted Debt” and, in each case, may not be reclassified.
(d) The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 7.4. For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; and
(xi) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 denominated in a Qualified Receivables Transaction that is without recourse to foreign currency shall be utilized, calculated based on the Company or to any Subsidiary of relevant currency exchange rate in effect on the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time date such Indebtedness was incurred or first committed, in the case of revolving Indebtedness. Notwithstanding anything to the contrary in this Section 7.4, the maximum amount of Indebtedness that Issuer or any Restricted Subsidiary may incur pursuant to this Section 7.4 shall not constitute be deemed to be exceeded solely as a separate incurrence result of fluctuations in exchange rates or currency values.
(e) The amount of any Indebtedness outstanding as of any date will be (i) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount; (ii) the principal amount of the Indebtedness, in the case of any other Indebtedness; and (iii) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of (a) the Fair Market Value of such assets at the date of determination and (b) the amount of the Indebtedness of the other Person.
Appears in 1 contract
Sources: Note Purchase and Exchange Agreement (Senseonics Holdings, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company SPV Parties shall not, and shall not permit any of its Subsidiaries and Unrestricted 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 Indebtednessand Delta shall not, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect any Indebtedness with respect to any Pre-paid Miles Purchase other than as set forth in clause (b) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries to issue any shares of preferred stockbelow):
(a) Junior Lien Debt; provided, however, provided that the Company may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) prior to the Fixed Charge Coverage Ratio for incurrence of such Junior Lien Debt, 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 such Disqualified Stock is issued would Rating Agency Condition shall have been at least 2 to 1satisfied, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; and (ii) no Default or Event of Default or Early Amortization Event shall have occurred and be continuing or would occur as result from the issuance of such Junior Lien Debt, (iii) to the extent that immediately after giving effect to the 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) funds transferred to the Collection Account pursuant to Section 2.24 in connection with such Determination Date shall not exceed 1.60 to 1.00 on a consequence thereof; provided, that no Guarantee may pro forma basis and (iv) such Junior Lien Debt shall not be incurred pursuant by or subject to this paragraph unless the guaranteed Indebtedness is incurred a guarantee by the Company or a any Subsidiary pursuant to this paragraph. The foregoing provisions shall not apply to:of Delta other than any SPV Party;
(b) Pre-paid Miles Purchases, so long as (i) the incurrence by the Company aggregate amount of Senior Revolving Debt and reimbursement obligations Miles purchased in respect of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries that are Subsidiary Guarantors Pre-paid Miles Purchases or other Indebtedness incurred with respect thereto) to Pre-paid Miles Purchases does not to exceed an amount equal to the result of (x) $25,000,000;
550.0 million divided by (y) the rate by which such Person purchases Miles from Delta as of the Closing Date, (ii) such sale is non-refundable and non-recourse to the incurrence by the Company and its Subsidiaries of the Existing IndebtednessSPV Parties, including the Senior Subordinated Notes;
(iii) the incurrence Indebtedness related thereto is unsecured or secured by assets of Delta or its subsidiaries (other than the Company SPV Parties) that do not constitute Collateral and (iv) no Early Amortization Period or Event of Indebtedness represented by Default is continuing at the Notes and by the Subsidiaries time of Indebtedness represented by the Subsidiary Guaranteessuch sale or would result therefrom;
(ivc) the incurrence Indebtedness under this Agreement and Qualifying Note Debt and any Indebtedness issued in a Capital Markets Offering by the Company or any of its 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 used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $10,000,000 at any time outstanding;
(v) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, Indebtedness that was permitted by this Indenture to be incurred;
(vi) the incurrence by the Company or any of its Wholly Owned Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned SubsidiariesBorrowers; provided, however, provided that (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held (other than with respect to clauses (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 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)), (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 existing Term Loans or notes outstanding pursuant to this clause (c), and (C) shall not be subject to or benefit from any Guarantee by a any Person other than a Wholly Owned Subsidiary and Loan Party, (ii) after giving effect to such Indebtedness, the outstanding principal amount of the Priority Lien Debt shall not exceed the Priority Lien Cap (plus, fees, expenses, premium and accrued interest in respect of any sale Indebtedness incurred pursuant to this Section 6.02(c) which refinances other Indebtedness of 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 after the initial issuance, the terms and conditions governing such Indebtedness shall (x) be reasonably acceptable to the Administrative Agent or other transfer (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 are (I) conformed (or added) in the Loan Documents for the benefit of the 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 or (II) applicable solely to periods after the latest final maturity date of the Term Loans existing at the time of such incurrence) and (D) shall be issued pursuant to a single indenture (or one or more substantially similar indentures) for all such Indebtedness under this Section 6.02(c); 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 Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(vii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk event with respect to any floating rate Subsidiary of Delta 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 that is permitted by this Indenture and (vi) other than in the case of the notes issued on the Closing Date, the pro forma Peak Debt Service Coverage Ratio (calculated using the Maximum Quarterly Debt Service of the then existing Term Loans and notes and such Indebtedness) as of the immediately preceding Determination Date, immediately after giving effect to the issuance of such Indebtedness shall be incurredmore than (i) for any date of determination prior to the Determination Date occurring in July 2022, 1.50 to 1:00, (ii) for any date of 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 date of determination occurring on or after the Determination Date in January 2023, 2.25 to 1:00;
(viii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(xd) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from customary indemnification or other similar obligations under the Loan Documents and the other agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing entered into on the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries Closing Date in connection with such dispositiontherewith (or replacements or amendments thereto which are permitted under this Agreement); and
(xie) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness otherwise permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtednessunder Section 6.06.
Appears in 1 contract
Sources: Term Loan Credit and Guaranty Agreement (Delta Air Lines, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company Borrower shall not, and shall not permit any of its Subsidiaries and Unrestricted 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 Indebtedness) Debt), and the Company Borrower shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company Borrower may incur Indebtedness (including Acquired IndebtednessDebt) or issue shares of Disqualified Stock Stock, and the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and (including Acquired Debt) or issue preferred stock if: (i) stock, if in each case the Fixed Charge Coverage Ratio for the CompanyBorrower's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or preferred stock is issued would have been at least 2 2.0 to 11.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the preferred stock or Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions first paragraph of this Section 5.8 shall not apply to:prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(i) the incurrence by the Company Borrower and any Restricted Subsidiary of Senior Revolving Debt Indebtedness and reimbursement obligations in respect of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (i) (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company Borrower and its Restricted Subsidiaries that are Subsidiary Guarantors with respect theretothereunder) not to exceed an $400,000,000 less the aggregate amount equal of all Net Proceeds of Asset Sales applied by the company or any of its Restricted Subsidiaries to $25,000,000repay any Indebtedness under the Credit Facilities and to effect a corresponding commitment reduction thereunder pursuant to Section 5.9 of this Agreement;
(ii) the incurrence by the Company Borrower and its Restricted Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) Indebtedness under this Agreement and the incurrence by the Company of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary Guaranteesother Loan Documents;
(iv) the incurrence by the Company Borrower or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligationsobligations, mortgage financings or Purchase Money Obligationspurchase money obligations, in each case case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property property, plant or equipment used in the business of the Company Borrower or such Restricted Subsidiary, in an aggregate principal amount amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $10,000,000 5% of Total Assets at any time outstanding;
(v) the incurrence by the Company Borrower or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extendrefund, refinance, renew, refinance or replace, defease or refund, Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture Agreement to be incurredincurred under the first paragraph of this Section 5.8 or clauses (ii), (iii), (iv), (v) or (x) of this paragraph;
(vi) the incurrence by the Company Borrower or any of its Wholly Owned Restricted Subsidiaries of intercompany Indebtedness between or among the Company Borrower and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Restricted Subsidiaries; provided, however, that that:
(iA) if the Borrower 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 the Loans, in the case of the Borrower, or the Guaranty of such Guarantor, in the case of a Guarantor; and
(1) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Borrower or a Wholly Owned Restricted Subsidiary thereof and (ii2) any sale or other transfer of any such Indebtedness to a Person that is not either the Company Borrower or a Wholly Owned Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi);
(vii) the incurrence by the Company Borrower or any of its Restricted Subsidiaries that are Subsidiary Guarantors of Hedging Obligations that are incurred for the purpose of fixing fixing, hedging or hedging managing interest rate rates with respect to Indebtedness that is permitted by the terms of this Agreement to be outstanding or to hedge exposure to foreign currency fluctuations or commodity price risk with respect to any floating rate Indebtedness that is permitted by this Indenture to be incurredcommodity purchases;
(viiiA) the incurrence guarantee by the Company Borrower or any of its Subsidiaries that are Subsidiary the Guarantors of Indebtedness of the Borrower or a Guarantor that was permitted to be incurred by another provision of this Section 5.8; and
(in addition to Indebtedness permitted B) the guarantee by any other clause Restricted Subsidiary of the Borrower that is not a Guarantor of Indebtedness of another Restricted Subsidiary of the Borrower that is not a Guarantor that was permitted to be incurred by another provision of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000Section 5.8;
(ix) the accrual of interest, 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 in the form of additional shares of the same class of Disqualified Stock; provided, in each such case, that the amount thereof is included in Fixed Charges of the Borrower as accrued;
(x) the incurrence by the CompanyBorrower or any of its Restricted Subsidiaries of additional Indebtedness or Disqualified Stock 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 (x), not to exceed $50,000,000;
(xi) the incurrence by the Borrower's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the CompanyBorrower that was not permitted by this clause (xi);
(xxii) the incurrence of Indebtedness (including letters of credit) in respect of workers' compensation claims, self-insurance obligations, performance, surety, bid or similar bonds and completion guaranties provided by the Borrower or one of its Restricted Subsidiaries in the ordinary course of business and consistent with past practices;
(xiii) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements of the Borrower or a Restricted Subsidiary providing for indemnification, adjustment of purchase price price, earn out or other similar obligations, in each case, incurred or from assumed in connection with the disposition of any business, assets or a Restricted Subsidiary, other than guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries Indebtedness incurred by any Person acquiring all or a any portion of such business, assets of a or Restricted Subsidiary of the Company for the purpose of financing such acquisition, ; provided that the maximum assumable liability in a principal amount not to respect of all such Indebtedness shall at no time exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of Borrower and its Restricted Subsidiaries in connection with such disposition; and;
(xixiv) the incurrence by a Receivables Subsidiary Securitization Entity of Indebtedness in a Qualified Securitization Transaction that is Non-Recourse Debt (except for Standard Securitization Undertakings) with respect to the Borrower and its other Restricted Subsidiaries;
(xv) Indebtedness of the Borrower evidenced by promissory notes subordinated to the Loans issued to employees of the Borrower and its Subsidiaries in lieu of cash payment at any time for Equity Interests of DASI being repurchased from such employees; provided; that the aggregate amount of such Indebtedness does not exceed $5,000,000 at any one time outstanding;
(xvi) guaranties of Indebtedness of any other person incurred by the Borrower or a Restricted subsidiary in the ordinary course of business in an aggregate principal amount not to exceed $25,000,000 5,000,000 at any one time outstanding;
(xvii) Indebtedness consisting of take-or-pay obligations contained in a Qualified Receivables Transaction supply agreements entered into by the Borrower or its Subsidiaries in the ordinary course; and
(xviii) Indebtedness of Foreign Restricted Subsidiaries that are not Guarantors permitted by Section 5.12 hereof. The Borrower will not incur any Indebtedness (including Permitted Debt) that is without recourse contractually subordinated in right of payment to any other Indebtedness of the Borrower unless such Indebtedness is also contractually subordinated in right of payment to the Company or Loans on substantially identical terms, provided that no Indebtedness of the Borrower will be deemed to be contractually subordinated in right of payment to any Subsidiary other Indebtedness of the Company Borrower solely by virtue of being unsecured or their assets having a junior Lien. For purposes of determining compliance with this Section 5.8, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (other than such Receivables Subsidiary and its assets)i) through (xvii) above, and or is not guaranteed by any such Person. Notwithstanding any other provision entitled to be incurred pursuant to the first paragraph of this covenantSection 5.8, a Guarantee the Borrower shall, in its sole discretion, classify such item of Indebtedness permitted by in any manner that complies with this Section 5.8. All borrowings outstanding on the terms date of this Indenture at Agreement under the time such Indebtedness was incurred shall not constitute a separate incurrence Credit Facilities will be deemed to have been borrowed pursuant to clause (i) of Indebtednessthe definition of Permitted Debt.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall not, and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries Restricted 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 Indebtedness) and the Company shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries and Unrestricted Subsidiaries that is not a Guarantor to issue any shares of preferred stockPreferred Stock; provided, however, that the Company and its Restricted Subsidiaries may incur Incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock ), and the Company's Restricted Subsidiaries that are Subsidiary not Guarantors may incur Indebtedness issue Preferred Stock, if on the date of such Incurrence or issuance and issue preferred stock if: after giving effect thereto, (ix) the Fixed Charge Coverage Consolidated Adjusted Debt to EBITDA Ratio for is less than 6.00 to 1.00 and (y) the Company's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding Consolidated Adjusted Senior Debt to EBITDA Ratio is less than 4:00 to 1:00 (this test being referred to herein as the date on which “Leverage Test”). For the purpose of the calculation of the Leverage Test, with respect to any period included in such additional Indebtedness is incurred or calculation, Consolidated EBITDA, the components of Consolidated Interest Expense, and Consolidated Adjusted Debt and Capital Expenditures shall be calculated with respect to such Disqualified Stock is issued would have been at least 2 to 1, determined period by the Company in good faith on a pro forma basis (including and consistent with Permitted Adjustments), giving effect to any Permitted Acquisition, Asset Disposition or Incurrence or redemption or repayment of Indebtedness that has given rise to the need for such calculation, has occurred during such period or has occurred after such period and on or prior to the date of such calculation (each a pro forma application “Subject Transaction”), including, with regard to Permitted Acquisitions and Asset Dispositions, by using the historical financial statements of any business so acquired or to be acquired or sold or to be sold and the consolidated financial statements of the net proceeds therefrom), Company and its Restricted Subsidiaries which shall be reformulated as if the additional such Subject Transaction, and any Indebtedness Incurred or redeemed or repaid in connection therewith, had been incurred, consummated or the Disqualified Stock had been issued, as the case may be, Incurred or redeemed or repaid at the beginning of such four-quarter period (and assuming that such Indebtedness bears interest during any portion of the applicable measurement period prior to the relevant acquisition at the weighted average of the interest rates applicable to outstanding revolving loans under the Credit Agreement Incurred during such period; and ).
(iib) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall not apply to:
(i) the incurrence Incurrence by the Company of Senior Revolving Debt and reimbursement obligations in respect of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries that are Subsidiary Guarantors with respect thereto) not to exceed an amount equal to $25,000,000of the Existing Indebtedness;
(ii) the incurrence Incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness, Indebtedness represented by the Notes and the Guarantees (not including any Additional Notes) and the Senior Subordinated NotesExchange Notes and the Exchange Guarantees issued in exchange therefor;
(iii) the incurrence by the Company of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary Guarantees;
(iv) the incurrence Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital (A) Capitalized Lease Obligations, mortgage financings or Purchase Money Obligations, in each case incurred purchase money Indebtedness Incurred for the purpose of financing all or any part of the purchase price or cost of construction construction, repair, addition to or improvement of property property, plant or equipment used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $180,000,000 at any one time outstanding, and (B) other purchase money Indebtedness in an aggregate principal amount not to exceed (without duplication) $10,000,000 at any one time outstanding;
(viv) the incurrence 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 extend, refinanceRefinance, renew, replace, defease or refund, Indebtedness that was permitted by this Indenture to be incurredIncurred by the Company or such Restricted Subsidiary;
(viv) the incurrence Incurrence by the Company or any of its Wholly Owned Restricted Subsidiaries of intercompany Indebtedness (A) between or among the Company and any Restricted Subsidiaries of the Company and (B) consisting of debits and credits among the Company and its Wholly Owned Restricted Subsidiaries or between or among any Wholly Owned Subsidiariespursuant to the Centralized Cash Management System; provided, however, that (i1) any intercompany Indebtedness which is borrowed by the Company or a Guarantor from a Restricted Subsidiary that is not a Guarantor shall be expressly subordinated to the Notes or such Guarantor’s Guarantee and (2) (x) any subsequent issuance or transfer of Equity Interests Capital Stock that results in any such Indebtedness being held by a Person other than the Company or a Wholly Owned Restricted Subsidiary and of the Company, or (iiy) any sale or other transfer of any such Indebtedness to a Person that is not either other than the Company or a Wholly Owned Restricted Subsidiary of the Company, or a lender or agent upon exercise of remedies under a pledge of such Indebtedness under the Credit Documents, shall be deemed, in each casecase of the foregoing clauses (2)(x) and (y), to constitute an incurrence Incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be;
(viivi) the incurrence Incurrence by the Company or any of its Restricted Subsidiaries that are Subsidiary Guarantors of Hedging Interest Swap Obligations that are incurred 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 incurredoutstanding;
(vii) the Incurrence by the Company and its Restricted Subsidiaries of Indebtedness evidenced by the Credit Documents (and the Guarantees thereof by the Company and the Company’s Subsidiaries) in a principal amount not exceeding $1,115,600,000 less all amounts used to repay Indebtedness under the Credit Agreement pursuant to Section 5.05; provided that, notwithstanding the limitations set forth in this clause (vii), in the event of any permanent reduction or repayment of the Credit Agreement’s revolving facility, the Company and its Restricted Subsidiaries shall have the right to obtain additional commitments under, and extend the maturity of, such revolving facility (and Incur additional revolving Indebtedness pursuant to such additional commitments) in an amount not exceeding the amount of such permanent reduction; provided, further, that the aggregate amount of all such additional commitments obtained by the Company and its Restricted Subsidiaries since the date of this Indenture does not exceed $100,000,000;
(viii) the incurrence Incurrence by the Company or any of its Restricted Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000under Currency Agreements;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(x) Indebtedness incurred Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries represented by letters of credit for the account of the Company or such Restricted Subsidiary, as the case may be, in order to provide security for workers’ compensation claims, payment obligations in connection with self-insurance or similar requirements in the Ordinary Course of Business;
(x) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of performance bonds, bankers’ acceptances, workers’ compensation claims, completion guarantees, letters of credit surety or appeal bonds, payment obligations in connection with self-insurance or similar obligations Incurred in the Ordinary Course of Business;
(xi) the Guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary of the Company that is a Subsidiary Guarantor was permitted to be Incurred by another provision of this Section 5.04;
(xii) Indebtedness arising from agreements of the Company or a Restricted Subsidiary of the Company providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of creditin each case, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries Incurred in connection with such disposition; and
(xi) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness Asset Disposition permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence or other sale or disposition of Indebtedness.assets permitted under this Indenture;
Appears in 1 contract
Sources: Indenture (Cincinnati Bell Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, "incurINCUR") any Indebtedness (including Acquired Indebtedness) and the Company shall will not issue any Disqualified Stock and shall will not permit any of its Subsidiaries and Unrestricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and if the Company's Subsidiaries that are Subsidiary Guarantors may incur Debt to Cash Flow Ratio at the time of incurrence of such Indebtedness or the issuance of such Disqualified Stock, after giving pro forma effect to such incurrence or issuance as of such date and issue preferred stock if: (i) to the Fixed Charge Coverage Ratio for use of proceeds therefrom as if the Company's same had occurred at the beginning of the most recently ended four full fiscal quarters Reference Period of the Company for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued available, would have been at least 2 no greater than 4.0 to 1, determined on a pro forma basis (including a pro forma application 1.0. The Company shall not incur any Indebtedness that is contractually subordinated in right of payment to any other Indebtedness of the net proceeds therefrom), as if Company unless such Indebtedness is also contractually subordinated in right of payment to the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereofNotes on substantially identical terms; provided, however, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by of the Company or a Subsidiary pursuant shall be deemed to this paragraphbe contractually subordinated in right of payment to any other Indebtedness of the Company solely by virtue of being unsecured. The foregoing provisions shall of the first paragraph of this section will not apply to:to the incurrence of any of the following items of Indebtedness (collectively, "PERMITTED INDEBTEDNESS"):
(i) the incurrence by the Company of Senior Revolving Debt and reimbursement obligations in respect of Indebtedness (including letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (credit, with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) under Credit Facilities; provided that are Subsidiary Guarantors with respect thereto) the aggregate principal amount of all Indebtedness outstanding under all Credit Facilities after giving effect to such incurrence does not to exceed an amount equal to the greater of (a) $25,000,000100.0 million less the aggregate amount of all Net Proceeds of Asset Sales applied to repay revolving credit Indebtedness under a Credit Facility pursuant to Section 4.10 hereof other than Net Proceeds received pursuant to the Satellite Lease Arrangements and (b) the Borrowing Base at the time of such incurrence;
(ii) the incurrence by the Company and its Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) the incurrence by the Company of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented Exchange Notes and the guarantee by the Subsidiary GuaranteesGuarantors thereof;
(iv) the incurrence by the Company or any of its Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or Purchase Money Obligationspurchase 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 property, plant or equipment used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed (subject to clause (x) below) $10,000,000 17.5 million at any time outstanding;
(v) the incurrence by the Company or any of its Subsidiaries of Indebtedness in connection with the acquisition of assets or a new Subsidiary; provided that such Indebtedness was incurred by the prior owner of such assets or such 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 it Subsidiaries; and provided further that the principal amount (or accreted value, as applicable) of such Indebtedness, together with any other outstanding Indebtedness incurred pursuant to this clause (v), does not exceed (subject to clause (x) below) $17.5 million;
(vi) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that is either Existing Indebtedness or was permitted by this Indenture to be incurredincurred under the first paragraph hereof or clauses (iii), (iv), (v) or (vi) of this paragraph;
(vivii) the incurrence by the Company or any of its Wholly Owned Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Subsidiaries; provided, however, that (i) if the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes and (ii)(A) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Wholly Owned Subsidiary thereof and (iiB) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be, that was not permitted by this clause (vii);
(viiviii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors 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 incurredoutstanding;
(viiiix) the guarantee by the Company or any of the Subsidiary Guarantors of Indebtedness of the Company or a Subsidiary of the Company that was permitted to be incurred by another provision of this covenant;
(x) the incurrence by the Company or any Subsidiary Guarantor of its Subsidiaries that are Subsidiary Guarantors of Vendor Financing Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding (or accreted value, as applicable) not to exceed the sum of $5,000,000;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(x) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued 15.0 million outstanding at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such dispositionanytime; and
(xi) the incurrence by a Receivables Subsidiary the Company of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding not to exceed $25,000,000 17.5 million; provided that the total amount of Indebtedness incurred by the Company pursuant to clauses (iv), (v) and (xi) hereof does not, in a Qualified Receivables Transaction the aggregate, exceed $35.0 million. For purposes of determining compliance with this covenant, (a) in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (i) through (xi) above or is without recourse entitled to be incurred pursuant to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision first paragraph of this covenant, a Guarantee the Company shall, in its sole discretion, classify such item of Indebtedness permitted by and will only be required to include the terms amount and type of such Indebtedness in one of the above clauses, and (b) an item of Indebtedness may be divided and classified in more than one of the types of Indebtedness described herein. Accrual of interest, 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 in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtednesscovenant.
Appears in 1 contract
Sources: Indenture (Amsc Acquisition Co Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee guaranty or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, "incur") any Indebtedness (including Acquired Indebtedness) and that the Company shall will not issue any Disqualified Stock and shall will not permit any of its Subsidiaries and Unrestricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) the 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 such Disqualified Stock is issued would have been at least 2 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; , and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph paragraph, unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall will not apply to:
(i) the incurrence by the Company of Senior Term Debt and Senior Revolving Debt and reimbursement obligations in respect of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries that are Subsidiary Guarantors with respect theretothereunder) not to exceed an amount equal to $25,000,000;
(ii) 90,000,000, less the incurrence by the Company and its Subsidiaries aggregate amount of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) the incurrence by the Company of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary Guarantees;
(iv) the incurrence by the Company or any of its 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 used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $10,000,000 at any time outstanding;
(v) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, Indebtedness that was permitted by this Indenture to be incurred;
(vi) the incurrence by the Company or any of its Wholly Owned Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Subsidiaries; provided, however, that (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than a Wholly Owned Subsidiary and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(vii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors 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 this Indenture to be incurred;
(viii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(x) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; and
(xi) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtedness.Net Proceeds
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company (a) Parent shall not, and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries Restricted Subsidiary 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 IndebtednessDebt) and the Company Parent shall not issue any Disqualified Stock Stock, and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries Restricted Subsidiary to issue any shares of preferred stockPreferred Stock; provided, however, that the Company Parent may incur Incur Indebtedness (including Acquired IndebtednessDebt) or issue shares of Disqualified Stock and the Company's Issuer and any Restricted Subsidiaries that which are Subsidiary Guarantors may incur Incur Indebtedness and issue preferred stock if: (iincluding Acquired Debt) the if Parent's Fixed Charge Coverage Ratio for the Company's its 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 Incurred or such Disqualified Stock is issued would have been at least 2 2.25 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurredIncurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; and .
(iib) The provisions of clause (a) of this Section 4.09 shall not apply to the Incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt") so long as no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall not apply tocaused thereby:
(i) the incurrence Incurrence by Parent, the Company Issuer or any Subsidiary Guarantor of Senior Revolving Debt Indebtedness under Working Capital Financing Lines, the proceeds of which may be used only for working capital purposes and reimbursement obligations in respect of letters of credit (to fund interest and Guarantees thereof by Subsidiaries mandatory principal payments when due on Indebtedness; provided, however, that are Subsidiary Guarantors) in an the aggregate principal amount at any time outstanding of all such Indebtedness Incurred pursuant to this clause (with letters of credit obligations being deemed to have a principal amount equal to i), does not exceed the maximum potential liability of the Company and its Subsidiaries that are Subsidiary Guarantors with respect thereto) not to exceed an amount equal to $25,000,000then current Borrowing Base;
(ii) the incurrence Incurrence by Parent and the Company and its Restricted Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) the incurrence Incurrence by the Company Issuer of Indebtedness represented by the Notes, the Exchange Notes and any exchange notes with respect to Additional Notes Incurred in accordance with the terms of this Indenture and the Incurrence by Parent of its Guarantee and by the Subsidiaries Subsidiary Guarantors of Indebtedness represented by the Subsidiary GuaranteesGuarantees in respect of the Notes, Exchange Notes and any Additional Notes Incurred in accordance with the terms of this Indenture;
(iv) the incurrence Incurrence by the Company Parent or any of its Subsidiaries Restricted Subsidiary of Indebtedness represented Incurred under any Warehouse Facility, provided that (A) such Warehouse Facility is rated A2 (or the equivalent successor ranking) or better by Capital Lease Obligations, mortgage financings Moody's or Purchase Money Obligations, in each case incurred A (or the equivalent successor rating) or ▇▇▇▇▇▇ by S&P and (B) the amount of such Indebtedness (excluding funding drafts issued thereunder) outstanding at any time pursuant to this clause (iv) may not exceed 90% of the principal amount of Financial Assets consisting of obligations for the purpose payment of financing all or any part money (including capitalized lease obligations) securing Indebtedness thereunder plus 90% of the purchase price value of other assets or cost of construction property (other than supporting obligations and collateral supporting or improvement of property used in securing such Financial Assets) securing Indebtedness thereunder; provided, however, that the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $10,000,000 of all such Indebtedness outstanding at any time outstandingand Incurred pursuant to this clause (iv) does not exceed $200.0 million;
(v) the incurrence Incurrence by Parent, the Company Issuer or any of its their respective Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by Incurred under paragraph (a) of this Indenture to be incurredSection 4.09 or clauses (ii), (iii) or (iv) or this clause (v) of this paragraph (b);
(vi) subject to the incurrence provisions of Section 4.10 hereof, the Incurrence by Parent, the Company Issuer or any of its Wholly Owned their respective Restricted Subsidiaries of intercompany Indebtedness or Preferred Stock between or among Parent, the Company Issuer and any of its Wholly Owned their respective Restricted Subsidiaries or between or among any Wholly Owned Subsidiariesthat are Subsidiary Guarantors; provided, however, that that
(ia) if the Issuer is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes and this Indenture,
(b) if Parent is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of Parent's Guarantee of the Notes,
(c) if a Subsidiary Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of such Subsidiary Guarantor's Subsidiary Guarantee; and
(I) any subsequent event or issuance or transfer of Equity Interests that results in any such Indebtedness or Preferred Stock being held by a Person other than Parent, the Issuer or a Wholly Owned Subsidiary Guarantor and (iiII) any sale or other transfer of any such Indebtedness or Preferred Stock to a Person that is not either Parent, the Company Issuer or a Wholly Owned Subsidiary Guarantor shall be deemed, in each case, to constitute an incurrence Incurrence of such Indebtedness or Preferred Stock by Parent, the Company Issuer or such SubsidiarySubsidiary Guarantor, as the case may be, that was not permitted by this clause (vi);
(vii) the incurrence Incurrence by the Company Parent or any of its Subsidiaries that are Restricted Subsidiary Guarantors of Hedging Obligations that are incurred in the ordinary course of business consistent with industry practices for the purpose of fixing or hedging currency, commodity or interest rate risk (including with respect to any floating rate Indebtedness that is permitted by the terms of this Indenture to be incurredoutstanding in connection with the conduct of their respective businesses) and not for speculative purposes;
(viii) the incurrence Incurrence by the Company Parent or any Restricted Subsidiary of its Subsidiaries that are Subsidiary Guarantors Guarantees of Indebtedness (in addition of the Issuer or a Restricted Subsidiary that was permitted to Indebtedness permitted be Incurred by any other clause another provision of this paragraph) Section 4.09; provided, however, that neither the Issuer nor any Subsidiary Guarantor may Guarantee any Indebtedness of Parent other than with respect to a Guarantee that is subordinated in an aggregate principal amount at any time outstanding not right of payment in full to exceed the sum of $5,000,000Notes and the Subsidiary Guarantees;
(ix) the incurrence Incurrence of Indebtedness of Parent or any Restricted Subsidiary Incurred in respect of performance bonds, bankers' acceptances and letters of credit in the ordinary course of business consistent with industry practices, including Indebtedness evidenced by letters of credit or surety bonds issued in the Company's Unrestricted Subsidiaries ordinary course of Nonbusiness consistent with industry practices to support the insurance or self-Recourse Debtinsurance obligations of Parent or any Restricted Subsidiary (including to secure workers' compensation and other similar insurance coverages), but excluding letters of credit issued in respect of or to secure money borrowed;
(x) the Incurrence by Parent or any Restricted Subsidiary of Indebtedness under repurchase agreements entered into in the ordinary course of business consistent with customary industry practices in connection with floor-plan financing arrangements;
(xi) the Incurrence by Parent, the Issuer or any Subsidiary Guarantor of Indebtedness under Floor Plan Financing Lines in the ordinary course of business and consistent with past practices; and
(xii) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Subsidiary was acquired by Parent or any Restricted Subsidiary (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 Parent or any Restricted Subsidiary); provided, however, that if any on the date of such acquisition and after giving pro forma effect thereto, Parent would have been able to incur at least $1.00 of additional Indebtedness ceases pursuant to be Non-Recourse Debt the paragraph (a) of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Companythis Section 4.09;
(xxiii) Indebtedness incurred the Incurrence by Parent, the Company Issuer or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; and
(xi) the incurrence by a Receivables 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 refund, refinance or replace any other Indebtedness Incurred pursuant to this clause (xiii), not to exceed $25,000,000 30.0 million.
(c) For purposes of determining compliance with this Section 4.09, in a Qualified Receivables Transaction the event that is without recourse to an item of proposed Indebtedness meets the Company or to any Subsidiary criteria of more than one of the Company categories of Permitted Debt described in clauses (i) through (xiii) above as of the date of Incurrence thereof or their assets is entitled to be Incurred pursuant to paragraph (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision a) of this covenantSection 4.09 as of the date of Incurrence thereof, a Guarantee the Issuer shall, in its sole discretion, classify (or later reclassify in whole or in part, in its sole discretion) such item of Indebtedness permitted by the terms of in any manner that complies with this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtedness.Section
Appears in 1 contract
Sources: Indenture (A 1 Homes Group Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries and Unrestricted 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 IndebtednessDebt) and that the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness (including Acquired IndebtednessDebt) or issue shares of Disqualified Stock and the Company's Restricted Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) if the Company's Fixed Charge Coverage Ratio for at the Company's time of incurrence of such Indebtedness or the issuance of such Disqualified Stock after giving pro forma effect thereto as if the same had occurred at the beginning of the most recently ended four full fiscal quarters quarter period of the Company for which internal financial statements are available immediately preceding have been filed with the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued SEC, would have been at least 2 2.0 to 1, determined on a pro forma basis (including a pro forma application . The Company shall not incur any Indebtedness that is contractually subordinated in right of payment to any other Indebtedness of the net proceeds therefrom), as if Company unless such Indebtedness is also contractually subordinated in right of payment to the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereofNotes on substantially identical terms; provided, however, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by of the Company or a Subsidiary pursuant shall be deemed to this paragraphbe contractually subordinated in right of payment to any other Indebtedness of the Company solely by virtue of being unsecured. The foregoing provisions shall of the first paragraph of this Section 4.09 will not apply to:to the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(i) the incurrence by the Company and its Restricted Subsidiaries of Senior Revolving Debt and reimbursement obligations in respect of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) additional term Indebtedness under Credit Facilities in an aggregate principal amount at any one time outstanding not to exceed $200.0 million less the aggregate amount of all mandatory or scheduled repayments of the principal of any such additional term Indebtedness (other than repayments that are immediately reborrowed) that have actually been made since the date of this Indenture;
(ii) the incurrence by the Company and its Restricted Subsidiaries of additional revolving credit Indebtedness and letters of credit pursuant to Credit Facilities in an aggregate principal amount (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries that are Subsidiary Guarantors with respect theretothereunder) at any one time outstanding not to exceed the Specified Amount as of such date of incurrence; provided that, that the aggregate principal amount of all Indebtedness incurred pursuant to this clause (ii) is reduced to an amount equal to outstanding balance of $25,000,0001.0 million or less for at least 30 consecutive days in each fiscal year;
(iiiii) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iiiiv) the incurrence by the Company of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary GuaranteesNotes;
(ivv) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or Purchase Money Obligationspurchase 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 property, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount not to exceed $10,000,000 20.0 million at any time outstanding;
(vvi) 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 extend, refinance, renew, replace, defease or refund, refinance or replace Indebtedness (other than intercompany Indebtedness and Indebtedness incurred pursuant to clauses (i) and (ii) above) that was permitted by this Indenture to be incurred;
(vivii) the incurrence by the Company or any of its Wholly Owned Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Restricted Subsidiaries; provided, however, that (i) if the Company is the obligor on any such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes and (ii)(A) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than 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 the Company or a Wholly Owned Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vii);
(viiviii) the incurrence by the Company or any of its Restricted Subsidiaries that are Subsidiary Guarantors of (a) 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 incurredincurred and (b) Currency Agreements that do not increase the Indebtedness of the Company and its Restricted Subsidiaries outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder;
(viiiix) Indebtedness in respect of performance bonds, letters of credits, surety or appeal bonds, prior to any drawing thereunder, for or in connection with pledges, deposits or payments made or given in the ordinary course of business;
(x) the incurrence guarantee by the Company or any of its Restricted Subsidiaries that are Subsidiary Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Section 4.09 (in addition to Indebtedness permitted including, without limiting the generality of the forgoing, the guarantee by any other clause Restricted Subsidiary of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum Company of $5,000,000Existing Indebtedness);
(ixxi) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Company;Company that was not permitted by this clause (xi); and
(xxii) Indebtedness incurred the incurrence by the Company or any of its Restricted Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; and
(xi) the incurrence by a Receivables 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 refund, refinance or replace any Indebtedness incurred pursuant to this clause (xii), not to exceed $25,000,000 40.0 million. For purposes of determining compliance with this Section 4.09, in a Qualified Receivables Transaction the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xii) above or is without recourse entitled to be incurred pursuant to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision first paragraph of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtedness.Section
Appears in 1 contract
Sources: Indenture (Premier Parks Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company Parent shall not, and shall not permit any of its Subsidiaries and Unrestricted 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 IndebtednessDebt) and that the Company shall Parent's Restricted Subsidiaries will not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries to issue any shares of preferred stock; providedstock (other than to the Parent or a Wholly Owned Restricted Subsidiary of the Parent), however, provided that the Company Parent and the Guarantors may incur Indebtedness (including Acquired IndebtednessDebt) or issue shares of Disqualified Stock and if the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) the Fixed Charge Consolidated Interest Coverage Ratio for the CompanyParent's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 2 2.0 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, incurred at the beginning of such four-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall of the first paragraph of this covenant will not apply to:to the incurrence of any of the following (collectively, "Permitted Debt"):
(i) the incurrence by the Company Parent and the Guarantors of Senior Revolving Debt Indebtedness under (a) this Agreement and reimbursement obligations (b) Capital Lease Obligations and purchase money financing in respect of letters property, plant and equipment, provided that the aggregate amount of credit Indebtedness incurred pursuant to this clause (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantorsi) in an aggregate principal amount shall not exceed at any time outstanding the greater of (with letters 1) $230.0 million and (2) the sum of credit obligations being deemed to have a principal amount equal to the maximum potential liability (A) 80% of the Company consolidated accounts receivable of the Parent as shown on the Parent's most recent balance sheet, plus (B) 60% of the consolidated inventory of the Parent as shown on the Parent's most recent balance sheet, plus (C) 50% of the consolidated property, plant and its Subsidiaries that are Subsidiary Guarantors with respect thereto) not to exceed an amount equal to $25,000,000equipment, net of depreciation, of the Parent as shown on the Parent's most recent balance sheet;
(ii) the incurrence by the Company Parent and its Subsidiaries the Subsidiary Guarantors of the Existing Indebtedness, including Indebtedness represented by the Senior Subordinated Notes, the Subsidiary Guarantees and the Indenture;
(iii) the incurrence by the Company of Indebtedness represented by the Notes Parent and by the its Restricted Subsidiaries of Indebtedness represented by the Subsidiary GuaranteesExisting Indebtedness;
(iv) the incurrence by the Company or any Parent and the Guarantors of its Subsidiaries of additional Indebtedness represented by Capital Lease Obligations, mortgage financings or Purchase Money Obligations, in each case incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $10,000,000 10.0 million at any time outstanding;
(v) the incurrence by the Company Parent and the Guarantors 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 Parent and the Guarantors and was not incurred in connection with, or in contemplation of, such acquisition by the Parent and the Guarantors, and provided further that the aggregate amount of Indebtedness incurred pursuant to this clause (v) does not exceed $5.0 million at any of time outstanding;
(vi) the incurrence by the Parent and its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, refinance or replace Indebtedness that was permitted by this Indenture to be incurredincurred by the first paragraph, or by clauses (ii) through (ix) of the second paragraph of this Section 1.7;
(vivii) the incurrence by the Company or any of its Wholly Owned Subsidiaries of intercompany Indebtedness between or among the Company Parent and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Restricted Subsidiaries; provided, however, provided that (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Parent or a Wholly Owned Subsidiary Restricted Subsidiary, and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company Parent or a Wholly Owned Subsidiary Restricted Subsidiary, shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company Parent or such Restricted Subsidiary, as the case may be;
(viiviii) the incurrence by the Company or any of Parent and its Restricted Subsidiaries that are Subsidiary Guarantors of Hedging Obligations that are incurred for the purpose of fixing or hedging (a) interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms of this Indenture Section 1.7 to be incurred;
outstanding or (viiib) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000foreign currency risk;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the CompanyParent that is not a Guarantor in an aggregate amount not to exceed the sum of (a) 80% of the accounts receivable of such Subsidiary as shown on such Subsidiary's most recent balance sheet, plus (b) 60% of the inventory of such Subsidiary as shown on such Subsidiary's most recent balance sheet, plus (c) 50% of the property, plant and equipment, net of depreciation, of such Subsidiary as shown on such Subsidiary's most recent balance sheet;
(x) the guarantee by the Parent or any Guarantor of Indebtedness that was permitted to be incurred by the Company or any another provision of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such dispositionthis Section 1.7; and
(xi) the incurrence by Indebtedness of a Receivables Subsidiary that is not recourse to the Parent or any of its Restricted Subsidiaries (other than Standard Securitization Undertakings) incurred in connection with a Qualified Receivables Transaction. For purposes of determining the amount of any Indebtedness of any Person under this Section 1.7, (a) there shall be no double counting of direct obligations, guarantees and reimbursement obligations for letters of credit; (b) the principal amount of any Indebtedness of such Person arising by reason of such Person having granted or assumed a Lien on its property to secure Indebtedness of another Person shall be the lower of the fair market value of such property and the principal amount of such Indebtedness outstanding (or committed to be advanced) at the time of determination; (c) the amount of any Indebtedness of such Person arising by reason of such Person having guaranteed Indebtedness of another Person where the amount of such guarantee is limited to an amount less than the principal amount of the Indebtedness so guaranteed shall be such amount as so limited; (d) Indebtedness shall not include a nonrecourse pledge by the Parent or any of its Restricted Subsidiaries of Investments in any Person that is not a Restricted Subsidiary of the Parent to secure the Indebtedness of such Person; and (e) Indebtedness of the Parent and its Restricted Subsidiaries shall not include Indebtedness of a Restricted Subsidiary whose assets consist solely of partnership or similar interests in another person that is not a Restricted Subsidiary of the Parent, where the obligations with respect to such Indebtedness arise as a matter of law from the obligations of such other Person. For purposes of determining compliance with this Section 1.7, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (x) above or is entitled to be incurred pursuant to the first paragraph of this Section 1.7, the Parent shall, in its sole discretion, classify such item of Indebtedness in an amount not any manner that complies with this Section 1.7 and such item of Indebtedness will be treated as having been incurred pursuant to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse only one of such clauses or pursuant to the Company or first paragraph hereof. Accrual of interest, the accretion of accredit value and the payment of interest in the form of additional Indebtedness will not be deemed to any Subsidiary be an incurrence of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision Indebtedness for purposes of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of IndebtednessSection 1.7.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall not, and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries toRestricted 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 Indebtedness) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted Restricted Subsidiaries to issue any shares of preferred stockPreferred Stock; providedPROVIDED, howeverHOWEVER, that the -38- Company and its Restricted Subsidiaries may incur Incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock ), and the Company's Restricted Subsidiaries that are Subsidiary Guarantors may incur Indebtedness issue Preferred Stock, if on the date of such Incurrence and issue preferred stock if: after giving effect thereto, (i) the Fixed Charge Coverage Consolidated Adjusted Debt to EBITDA Ratio for is less than 6.00 to 1.00 and (ii) the Company's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding Consolidated Adjusted Senior Debt to EBITDA Ratio is less than 4.00 to 1.00 (this test being referred to herein as the date on which "Leverage Test"). For the purpose of the calculation of the Leverage Test, with respect to any period included in such additional Indebtedness is incurred or calculation, Consolidated EBITDA, the components of Consolidated Interest Expense, and Consolidated Adjusted Debt and Capital Expenditures shall be calculated with respect to such Disqualified Stock is issued would have been at least 2 to 1, determined period by the Company in good faith on a pro forma basis (including and consistent with Permitted Adjustments), giving effect to any Permitted Acquisition, Asset Disposition or Incurrence or redemption or repayment of Indebtedness that has given rise to the need for such calculation, has occurred during such period or has occurred after such period and on or prior to the date of such calculation (each a pro forma application "Subject Transaction"), including, with regard to Permitted Acquisitions and Asset Dispositions, by using the historical financial statements of any business so acquired or to be acquired or sold or to be sold and the consolidated financial statements of the net proceeds therefrom), Company and its Restricted Subsidiaries which shall be reformulated as if the additional such Subject Transaction, and any Indebtedness Incurred or redeemed or repaid in connection therewith, had been incurred, consummated or the Disqualified Stock had been issued, as the case may be, Incurred or redeemed or repaid at the beginning of such four-quarter period (and assuming that such Indebtedness bears interest during any portion of the applicable measurement period prior to the relevant acquisition at the weighted average of the interest rates applicable to outstanding revolving loans under the Credit Agreement Incurred during such period; and ).
(iib) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall not apply to:
(i) the incurrence Incurrence by the Company of Senior Revolving Debt and reimbursement obligations in respect of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries that are Subsidiary Guarantors with respect thereto) not to exceed an amount equal to $25,000,000of the Existing Indebtedness;
(ii) the incurrence Incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness, Indebtedness represented by the Notes and the Guarantees (not including any Additional Notes) and the Senior Subordinated NotesExchange Notes and the Exchange Guarantees issued in exchange therefor;
(iii) the incurrence by the Company of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary Guarantees;
(iv) the incurrence Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital (A) Capitalized Lease Obligations, mortgage financings or Purchase Money Obligationspurchase money Indebtedness, in each case incurred case, Incurred for the purpose of financing all or any part of the purchase price or cost of construction construction, repair, addition to or improvement of property property, plant or equipment used in the business of the Company or such Subsidiary, in an aggregate principal amount, not to exceed $120,000,000 at any one time outstanding and (B) other purchase money Indebtedness in an aggregate principal amount not to exceed (without duplication) $10,000,000 at any one time outstanding;
(viv) the incurrence 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 extend, refinanceRefinance, renew, replace, defease or refund, Indebtedness that was permitted by this Indenture to be incurredIncurred by the Company or such Restricted Subsidiary;
(viv) the incurrence Incurrence by the Company or any of its Wholly Owned Restricted Subsidiaries of intercompany Indebtedness (A) between or among the Company and any Restricted Subsidiaries of the Company and (B) consisting of debits and credits among the Company and its Wholly Owned Restricted Subsidiaries or between or among any Wholly Owned Subsidiariespursuant to the Centralized Cash Management System; providedPROVIDED, howeverHOWEVER, that (i1) any intercompany Indebtedness which is borrowed by the Company or a Guarantor from a Restricted Subsidiary that is not a Guarantor shall be expressly subordinated to the Notes or such Guarantor's Guarantee and (2) (x) any subsequent issuance or transfer of Equity Interests Capital Stock that results in any such Indebtedness being held by a Person other than the Company or a Wholly Owned Restricted Subsidiary and of the Company, or (iiy) any sale or other transfer of any such Indebtedness to a Person that is not either other than the Company or a Wholly Owned Restricted Subsidiary of the Company, or a lender or agent upon exercise of remedies under a pledge of such Indebtedness under the Credit Documents, shall be deemed, in each casecase of the foregoing clauses (2)(x) and (y), to constitute an incurrence Incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be;
(viivi) the incurrence Incurrence by the Company or any of its Restricted Subsidiaries that are Subsidiary Guarantors of Hedging Interest Swap Obligations that are incurred 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 incurredoutstanding;
(vii) the Incurrence by the Company and its Restricted Subsidiaries of Indebtedness evidenced by the Credit Documents (and the Guarantees thereof by the Company and the Company's Subsidiaries) in a principal amount not exceeding $1,115,600,000 less all amounts used to repay Indebtedness under the Credit Agreement pursuant to Section 5.05; PROVIDED that, notwithstanding the limitations set forth in this clause (vii), in the event of any permanent reduction or repayment of the Credit Agreement's revolving facility, the Company and its Restricted Subsidiaries shall have the right to obtain additional commitments under, and extend the maturity of, such revolving facility (and Incur additional revolving Indebtedness pursuant to such additional commitments) in an amount not exceeding the amount of such permanent reduction; PROVIDED, FURTHER, that the aggregate amount of all such additional commitments obtained by the Company and its Restricted Subsidiaries since the date of this Indenture does not exceed $100,000,000;
(viii) the incurrence Incurrence by the Company or any of its Restricted Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000under Currency Agreements;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(x) Indebtedness incurred Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries represented by letters of credit for the account of the Company or such Restricted Subsidiary, as the case may be, in order to provide security for workers' compensation claims, payment obligations in connection with self-insurance or similar requirements in the Ordinary Course of Business;
(x) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of performance bonds, bankers' acceptances, workers' compensation claims, completion guarantees, letters of credit surety or appeal bonds, payment obligations in connection with self-insurance or similar obligations Incurred in the Ordinary Course of Business;
(xi) the Guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary of the Company that is a Subsidiary Guarantor was permitted to be Incurred by another provision of this Section 5.04;
(xii) Indebtedness arising from agreements of the Company or a Restricted Subsidiary of the Company providing for indemnification, adjustment of purchase price or similar obligations, in each case, Incurred in connection with an Asset Disposition permitted by this Indenture or from guarantees other sale or disposition of letters assets permitted under this Indenture;
(xiii) Indebtedness permitted to be Incurred by Section 5.11;
(xiv) Indebtedness of credita Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred in contemplation of, surety bonds in connection with, as consideration in, or performance bonds securing the performance to provide all or any portion of the Company funds or any credit support utilized to consummate, the transaction or series of its Subsidiaries incurred by any Person acquiring all or a portion of related transactions pursuant to which such business, assets of Restricted Subsidiary became a Subsidiary of or was otherwise acquired by the Company); PROVIDED, HOWEVER, that on the date that such Restricted Subsidiary is acquired by the Company, the Company for would have been able to Incur $1.00 of additional Indebtedness under the purpose first paragraph of financing this Section 5.04 pursuant to the Leverage Test after giving effect to the Incurrence of such acquisitionIndebtedness pursuant to this clause (xiv);
(xv) the Incurrence of non-recourse Indebtedness secured only by, in a principal amount not to exceed 25% of and with recourse only to, the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such dispositionSpectrum Assets; and
(xixvi) the incurrence by a Receivables Subsidiary Incurrence of other Indebtedness in an amount not to exceed $25,000,000 100 million in a Qualified Receivables Transaction the aggregate principal amount at any time outstanding.
(c) For purposes of determining compliance with this Section 5.04, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (i) through (xvi) of the immediately preceding paragraph or is without recourse entitled to be Incurred pursuant to Section 5.04(a), the Company shall, in its sole discretion, classify (or later reclassify) such item of Indebtedness in any manner that complies with this Section 5.04 and will only be required to include the amount and type of such Indebtedness in one of such clauses of Section 5.04(b) or pursuant to Section 5.04(a); PROVIDED that Indebtedness outstanding under the Credit Documents as of the Closing Date shall be deemed to have been Incurred pursuant to clause (vii) of Section 5.04(b). Accrual of interest, accretion of accreted value, amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms as the Indebtedness on which such interest is -41- being paid and any other issuance of securities paid-in-kind shall not be deemed to be an Incurrence of Indebtedness for purposes of this Section 5.04, but such amounts shall be included in Consolidated Adjusted Debt to the extent provided for in such definition. In addition, the Company may, at any time, change the classification of an item of Indebtedness (or any portion thereof) to any other clause of Section 5.04(b) or to any Subsidiary of Indebtedness properly Incurred under Section 5.04(a), PROVIDED that the Company would be permitted to Incur such item of Indebtedness (or their assets (portion thereof) pursuant to such other than such Receivables Subsidiary and its assetsclause of Section 5.04(b) or Section 5.04(a), and is not guaranteed by any as the case may be, at such Person. Notwithstanding any other provision time of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtednessreclassification.
Appears in 1 contract
Sources: Indenture (Cincinnati Bell Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries and Unrestricted 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 Indebtedness) Debt), and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness (including Acquired IndebtednessDebt) or issue shares of Disqualified Stock and the Company's Restricted Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock under Credit Facilities or pursuant to Permitted Telecommunications Financing if: , in each case (i) the 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 such Disqualified Stock is issued would have been at least 2 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall not apply to:
and (i2) the Debt to Consolidated Cash Flow Ratio at the time of incurrence by of such Indebtedness or the Company issuance of Senior Revolving Debt such Disqualified Stock, after giving pro forma effect to such incurrence or issuance as of such date and reimbursement obligations in respect of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability use of proceeds therefrom as if the same had occurred at the beginning of the most recently ended four full fiscal quarter period of the Company and its Subsidiaries for which internal financial statements are available, would have been no greater than 6.0 to 1 for Indebtedness incurred on or prior the date that are Subsidiary Guarantors with respect thereto) not to exceed an amount equal to $25,000,000;
(ii) is eighteen months after the incurrence by the Company and its Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) the incurrence by the Company of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary Guarantees;
(iv) the incurrence by the Company or any of its 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 used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $10,000,000 at any time outstanding;
(v) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange forClosing Date, or the net proceeds of which are used no greater than 5.5 to extend, refinance, renew, replace, defease or refund, 1 for Indebtedness that was permitted by this Indenture to be incurred;incurred after such date.
(vi) the incurrence by the Company or any of its Wholly Owned Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Subsidiaries; provided, however, that (i) any subsequent issuance or transfer of Equity Interests Interests, other than directors qualifying shares, that results in any such Indebtedness being held by a Person other than the Company or a Wholly Owned Restricted Subsidiary and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary Restricted Subsidiary; shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be;
, that was not permitted by this clause (vii6), (7) the incurrence by the Company or any of its Restricted Subsidiaries that are Subsidiary Guarantors 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 incurred;
outstanding, (viii8) the guarantee by the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Indenture, (9) the incurrence by the Company of Indebtedness or by a Restricted Subsidiary of the Company of Indebtedness not to exceed, at any one time outstanding, 2.0 times the aggregate net cash proceeds received by the Company after the Closing Date from the issuance and sale of its Common Stock (other than Disqualified Stock) to a Person that is not a Subsidiary of the Company, to the extent such net cash proceeds have not been used pursuant to clause 3(b) of the second paragraph or clause (2) of the third paragraph of Section 4.07 hereof to make a Restricted Payment or to make a Permitted Investment pursuant to clause (9) of the definition thereof; provided that such Indebtedness (other than Acquired Debt) does not mature prior to the Stated Maturity of the Notes and the Weighted Average Life to Maturity of such Indebtedness is longer than that of the Notes, (10) the incurrence by the Company of Indebtedness, to the extent that the net proceeds thereof are promptly (A) used to repurchase Notes tendered in a Change of Control Offer or (B) deposited to defease all of the Notes as described in Article 8 hereof, (11) the incurrence by the Company or any of its Restricted Subsidiaries that are Subsidiary Guarantors of Indebtedness (constituting reimbursement obligations with respect to letters of credit issued in addition the ordinary course of business, including without limitation, letters of credit in respect of workers' compensation claims or self-insurance, or other Indebtedness with respect to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, reimbursement type obligations regarding workers' compensation claims; provided, however, that if any upon the drawing of such Indebtedness ceases to be Non-Recourse Debt letters of an Unrestricted Subsidiarycredit or the incurrence of such Indebtedness, such event shall be deemed to constitute an incurrence obligations are reimbursed within 30 days following such drawing or incurrence, (12) Indebtedness arising from agreements of Indebtedness by the Company or a Restricted Subsidiary of the Company;
(x) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or from assumed in connection with the disposition of any business, assets or a Subsidiary, other than guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries Indebtedness incurred by any Person acquiring all or a any portion of such business, assets of or a Subsidiary of the Company for the purpose of financing such acquisition, ; provided that (a) such Indebtedness is not reflected on the balance sheet of the Company or any Restricted Subsidiary (contingent obligations referred to in a principal amount the footnote or footnotes to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (a)) and (b) the maximum assumable liability in respect of such Indebtedness shall at no time exceed 25% of the gross proceeds including non-cash proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined of such non- cash proceeds being measured at the time received without giving effect to any such subsequent changes in value) actually received by the Board Company and/or such Restricted Subsidiary in connection with such disposition, (13) obligations in respect of Directors performance and surety bonds and completion guarantees provided by the Company or any Restricted Subsidiary of the Company in good faiththe ordinary course of business, (14) actually received 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 in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09, and (15) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness (in connection with such disposition; and
addition to any Indebtedness permitted by clauses (xi1) through (14) above or by the incurrence by a Receivables Subsidiary first paragraph of Indebtedness this Section 4.09) in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, not to exceed $25,000,000 in a Qualified Receivables Transaction 25.0 million. The Company shall not incur any Indebtedness (including Permitted Debt) that is without recourse to the Company or contractually subordinated in right of payment to any Subsidiary other Indebtedness of the Company or their assets (other than unless such Receivables Subsidiary and its assets)Indebtedness is also contractually subordinated in right of payment to the Notes on substantially identical terms; provided, and is not guaranteed by any such Person. Notwithstanding however, that no Indebtedness of the Company shall be deemed to be contractually subordinated in right of payment to any other provision Indebtedness of the Company solely by virtue of being unsecured. 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 (15) above, or is entitled to be incurred pursuant to the first paragraph of this covenantSection 4.09, a Guarantee the Company will be permitted to classify such item of Indebtedness permitted by on the terms 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. Indebtedness under Credit Facilities outstanding on the date on which Notes are first issued and authenticated under this Indenture at shall be deemed to have been incurred on such date in reliance on the time such Indebtedness was incurred shall not constitute a separate incurrence exception provided by clause (1) of Indebtednessthe definition of Permitted Debt.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries and Unrestricted 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 IndebtednessDebt) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness (including Acquired IndebtednessDebt) or issue shares of Disqualified Stock and if the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) the 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 such Disqualified Stock is issued would have been at least 2 2.00 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions of the first paragraph of this covenant shall not apply to:to the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(i) the incurrence by the Company of Senior Revolving Debt term Indebtedness, revolving credit Indebtedness and reimbursement obligations in respect of indebtedness under letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company thereunder) under any Credit Facility (and its Subsidiaries the Guarantee thereof by the Guarantors); provided that, subject to clause (xii) below, the aggregate principal amount of all Indebtedness and letters of credit outstanding at any one time under all Credit Facilities after giving effect to such incurrence, does not exceed $50.0 million less the aggregate amount of all permanent repayments from Net Proceeds of Asset Sales or as stated amortization of a term loan, if applicable, optional or mandatory, of the principal of any Indebtedness under a Credit Facility (or any such Permitted Refinancing Indebtedness) that are Subsidiary Guarantors with respect thereto) have been made since August 11, 1997; provided that such deduction will not to exceed an amount equal to exceed, in the aggregate, $25,000,00025.0 million;
(ii) the incurrence by the Company and its Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) the incurrence by the Company of Indebtedness represented by the 1997 Notes Notes and the incurrence by the Subsidiaries Guarantors of Indebtedness represented by the subsidiary guarantees of the 1997 Notes and the Exchange Notes and the related Subsidiary GuaranteesGuarantees to be issued pursuant to the Registration Rights Agreement;
(iv) the incurrence by the Company or any of its Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or Purchase Money Obligationspurchase 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 property, plant or equipment used in the business of the Company or such Subsidiary, in an aggregate principal amount amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace Indebtedness incurred pursuant to this clause (iv), not to exceed $10,000,000 5.0 million at any time outstanding;
(v) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, Indebtedness that was permitted by this Indenture to be incurredIndebtedness;
(vi) the incurrence by the Company or any of its Wholly Owned Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Subsidiariesthat are Guarantors; provided, however, that (i) if the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes and this Indenture, (ii) if a Subsidiary of the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of such Subsidiary's Subsidiary Guarantee and (iii)(A) any subsequent event or issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Wholly Owned Subsidiary of the Company and (iiB) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary of the Company that is a Guarantor shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be, that was not permitted by this clause (vi);
(vii) the issuance by a Subsidiary that is a Guarantor of preferred stock to the Company or to any of its Subsidiaries that are Guarantors; provided, however, that any subsequent event or issuance or transfer of any Equity Interests that results in the owner of such preferred stock ceasing to be the Company or one of its Subsidiaries that are Guarantors or any subsequent transfer of such preferred stock to a Person other than the Company or any of its Subsidiaries that are Guarantors, shall be deemed to be an issuance of preferred stock by such Subsidiary that was not permitted by this clause (vii).
(viii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors 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 this Indenture the terms hereof to be incurred;
(viii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000outstanding;
(ix) the incurrence by the Company's Unrestricted Subsidiaries Indebtedness arising from agreements of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(x) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred in connection with the disposition of any business, assets or from a Subsidiary, other than the guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries Indebtedness incurred by any Person acquiring all or a any portion of such business, assets of or a Subsidiary of the Company for the purpose of financing such acquisition; provided, however, that (A) such Indebtedness is not reflected on the balance sheet of the Company or any Subsidiary (contingent obligations referred to in a principal amount footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (A)) and (B) the maximum assumable liability in respect of all such Indebtedness shall at no time exceed 25% of the gross proceeds including noncash proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by of such noncash proceeds being measured at the Board of Directors of the Company time received and without giving effect to any subsequent changes in good faithvalue) actually received by the Company or any of and its Subsidiaries in connection with such disposition; and;
(x) the guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Subsidiary of the Company that was permitted to be incurred by another provision of this Section 4.09;
(xi) the incurrence of Indebtedness by one of the Company's Subsidiaries evidenced by the promissory notes (the "Eagle Rock Notes") issued and issuable under the certain Lease Agreement date April 19, 1986, as amended by a Receivables Subsidiary Memorandum of Agreement dated February 26, 1993, between one of the Company's Subsidiaries (as successor in interest to DSD, Inc.) and 426 Eagle Rock Avenue Associates; or
(xii) the incurren▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ 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 other Indebtedness incurred pursuant to this clause (xii), not to exceed $25,000,000 10.0 million; provided that such additional Indebtedness may be Senior Debt under any Credit Facility. For purposes of determining compliance with this covenant, in a Qualified Receivables Transaction the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xii) above or is without recourse entitled to be incurred pursuant to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision first paragraph of this covenant, a Guarantee the Company shall, in its sole discretion, classify such item of Indebtedness permitted by in any manner that complies with this Section 4.09. Accrual of interest, the terms accretion of accreted value and the payment of interest in the form of additional Indebtedness will not be deemed to be an incurrence of Indebtedness for purposes of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of IndebtednessSection 4.09.
Appears in 1 contract
Sources: Indenture (B&g Foods Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee guaranty or otherwise become directly or indirectly liable, contingently or otherwise, liable with respect to (collectively, "incurINCUR") any Indebtedness (including Acquired Indebtedness) Debt), and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries to issue any shares of preferred stock; providedPROVIDED, howeverHOWEVER, that the Company may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: if (i) the 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 such Disqualified Stock is issued would have been at least 2 (a) 2.25 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, in each case determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), ) as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, incurred at the beginning of such four-quarter period; period and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed such Indebtedness is incurred by pari passu with or subordinated in right of payment to the Company or Notes and has a Subsidiary pursuant Weighted Average Life to this paragraphMaturity that is greater than the remaining Weighted Average Life to Maturity of the Notes. The foregoing provisions shall limitations will not apply to:
to (ia) the incurrence by the Company or any of Senior Revolving Debt its Subsidiaries of revolving credit Indebtedness and reimbursement obligations in respect of letters of credit (credit, and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) any extension, refinancing, renewal, replacement or refunding thereof, in an aggregate principal amount at any one time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries that are Subsidiary Guarantors with respect thereto) not to exceed an $25 million, less the amount equal of Net Proceeds of Asset Sales that have been applied to $25,000,000;
permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, (iib) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) the incurrence by the Company of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary Guarantees;
Senior Notes, (ivd) the incurrence by the Company or any of its 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 used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $10,000,000 at any time outstanding;
(v) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease refund or refunddefease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that was permitted by this Indenture to be incurred;
(vi1) the incurrence by principal amount of such Refinancing Indebtedness shall not exceed the Company principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or any defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of its Wholly Owned Subsidiaries the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Subsidiaries; providedthat are Subsidiary Guarantors, however, that (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than a Wholly Owned Subsidiary and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(viif) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors of Hedging Obligations that are incurred for to protect the purpose of fixing or hedging Company against interest rate risk with respect to any floating variable rate Indebtedness that is permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date of this Indenture to be incurred;
and (viiik) the incurrence by the Company or any of and its Subsidiaries that are Subsidiary Guarantors of Hedging Obligations with respect to long-term Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Accounts Receivable Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(x) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; and
(xi) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtedness.
Appears in 1 contract
Sources: Indenture (Apparel Retailers Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company Company, NE LP and NE LLC shall not, and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or guarantee, otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, "incur") any Indebtedness (including Acquired Indebtedness) , other than Permitted Indebtedness, and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries Stock, unless (a) such Indebtedness will be pari passu with or subordinated to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock Note and the Company's Subsidiaries that Bonds, (b) the proceeds of such incurrence or issuance are Subsidiary Guarantors may incur used to make equity contributions to either or both of NEA or NJEA, (c) the proceeds of such incurrence or issuance are used to finance the completion of Required Improvements or capital expenditures for the Projects other than Required Improvements, (d) if the proceeds of such Indebtedness and issue preferred stock if: are used to finance the completion of Required Improvements (as defined in the Project Indenture as in effect on the date of the Indenture), (i) the Fixed Charge Projected Debt Service 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 such Disqualified Stock is issued would have been at least 2 to 1, (determined on a pro forma basis (including a pro forma giving effect to the incurrence and the application of the net proceeds therefrom), as if therefrom and the additional Indebtedness had been incurred, or construction of the Disqualified Stock had been issued, as Required Improvements) measured on each remaining semi-annual payment date in respect of the case may be, Bonds is at the beginning of such four-quarter period; least 1.2 to 1 and (ii) no Default an independent engineer acceptable to the Trustee (which may, absent any conflict or Event the objection of Default shall have occurred the Trustee, be the Independent Engineer with respect to the Project Securities) certifies that the Improvements are Required Improvements (as defined in the Project Indenture as in effect on the date of the Indenture) and that there will be continuing or would occur as a consequence thereof; providedsufficient funds available to construct the Required Improvements after the incurrence and (e) if the proceeds of such Indebtedness are used to finance capital expenditures for the Projects other than Required Improvements, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall not apply to:
(i) the incurrence by the Company of Senior Revolving Projected Debt and reimbursement obligations in respect of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries that are Subsidiary Guarantors with respect thereto) not to exceed an amount equal to $25,000,000;
(ii) the incurrence by the Company and its Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) the incurrence by the Company of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary Guarantees;
(iv) the incurrence by the Company or any of its 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 used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $10,000,000 at any time outstanding;
(v) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, Indebtedness that was permitted by this Indenture to be incurred;
(vi) the incurrence by the Company or any of its Wholly Owned Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Subsidiaries; provided, however, that (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than a Wholly Owned Subsidiary and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(vii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors 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 this Indenture to be incurred;
(viii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(x) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; and
(xi) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtedness.Service Coverage Ratio
Appears in 1 contract
Sources: Indenture (Northeast Energy Lp)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company Issuer shall not, and shall not permit any of its Subsidiaries and Unrestricted the Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liableliable for, contingently or otherwiseotherwise (including by way of merger, consolidation or acquisition) (collectively, to "incur"), with respect to (collectively, "incur") any Indebtedness (including Acquired Indebtedness) and ----- the Company Issuer shall not issue or incur any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted the Restricted Subsidiaries to issue or incur any shares of preferred stock; provided, however, that Preferred Stock unless the Company may incur Indebtedness (including Acquired Indebtedness) or issue shares Consolidated Leverage Ratio at the end of Disqualified Stock and the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) the Fixed Charge Coverage Ratio for the CompanyIssuer's most recently ended four full fiscal quarters quarter for which internal financial statements are available immediately preceding a consolidated balance sheet of the date on which such additional Indebtedness is incurred Issuer has been filed with the Commission or such Disqualified Stock is issued provided to the Purchasers pursuant to Section 6.01 would have been at least 2 equal to 1or less than 6.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall not apply to:.
(i) Indebtedness of the Issuer such that, after giving effect to the incurrence by thereof, the Company of Senior Revolving Debt and reimbursement obligations in respect of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an total aggregate principal amount at of Indebtedness incurred under this clause (i) and any time outstanding (refinancings thereof otherwise incurred in compliance with letters this Agreement would not exceed 100% of credit obligations being deemed Total Incremental Equity if such incurrence is prior to have a principal amount equal to the maximum potential liability an IPO Liquidity Event or 125% of the Company and its Subsidiaries that are Subsidiary Guarantors with respect thereto) not to exceed Total Incremental Equity if such incurrence is on or after an amount equal to $25,000,000IPO Liquidity Event;
(ii) the incurrence by the Company Issuer or any Restricted Subsidiary of Indebtedness represented by the Notes and its Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Exchange Notes;
(iii) the incurrence of Indebtedness by the Company Issuer owing to any Restricted Subsidiary or Indebtedness of any Restricted Subsidiary owing to the Issuer or any Restricted Subsidiary (but such Indebtedness shall be deemed to be incurred upon such Indebtedness being held by any Person other than the Issuer or such Restricted Subsidiary including upon Designation and upon such Restricted Subsidiary otherwise no longer being a Restricted Subsidiary); provided that in the case of Indebtedness represented by of the Notes Issuer, such obligations shall be unsecured and by subordinated in all respects to the Subsidiaries of Indebtedness represented by Issuer's obligations pursuant to the Subsidiary GuaranteesNotes;
(iv) the incurrence by the Company Issuer or any of its Subsidiaries a Restricted Subsidiary 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 used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $10,000,000 incurred and outstanding at any time outstandingpursuant to this clause (iv) of up to $10 million;
(v) the incurrence by the Company Issuer or any Restricted Subsidiary of its Subsidiaries Indebtedness pursuant to one or more Permitted Credit Facilities in an aggregate amount incurred and outstanding at any time pursuant to this clause (v) of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used up to extend, refinance, renew, replace, defease or refund, Indebtedness that was permitted by this Indenture to be incurred$25.0 million;
(vi) the incurrence (including in connection with an Asset Acquisition) by the Company Issuer or any Restricted Subsidiary of its Wholly Owned Subsidiaries Indebtedness (including Capital Lease Obligations) to the extent the proceeds thereof are or were used to finance the acquisition of intercompany Indebtedness between computer, communications, routers, servers, switches and related installation and/or maintenance agreements, if any, to be used in connection with the performance of netsourcing services to customers of the Issuer or among the Company and any of its Wholly Owned Subsidiaries Subsidiary pursuant to one or between or among any Wholly Owned Subsidiariesmore Customer Contracts; provided, however, provided that (i1) any subsequent issuance such equipment is acquired for customer-specific purposes (whether one or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than a Wholly Owned Subsidiary multiple customers) related to existing Customer Contracts and (ii2) the aggregate principal amount at the time of incurrence of any sale or other transfer Indebtedness used to finance the acquisition of any such Indebtedness to a Person that is assets shall not either exceed one-third of the Company aggregate dollar backlog (i.e., the cumulative total payments provided for under --- applicable Customer Contracts over the life of such contracts without any discount for time value or a Wholly Owned Subsidiary shall reserve of any kind) of all customers for whom such assets are to be deemed, used under the related Customer Contracts (provided that only three years of backlog under any one Customer Contract may be taken account of in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may becalculating availability under this clause (vi));
(vii) the incurrence by the Company Issuer or any Restricted Subsidiary of Purchase Money Indebtedness (including Indebtedness incurred, acquired or assumed in connection with an Asset Acquisition), equipment financing, vendor financing or Capital Lease Obligations, including under a Permitted Credit Facility; provided that in each case, such Indebtedness shall not constitute more than 100% of the cost (determined in accordance with GAAP in good faith by the Board of Directors of the Issuer, but excluding goodwill in the case of an Asset Acquisition) to the Issuer or a Restricted Subsidiary, as applicable, of the property so purchased, developed, acquired, constructed, improved or leased together with services provided in connection therewith; provided that the sum of the aggregate principal amount of Indebtedness incurred and outstanding under this clause (vii) and clause (v) above will not exceed at any time $45.0 million;
(viii) the incurrence by the Issuer or any of its Restricted Subsidiaries that are Subsidiary Guarantors of Hedging Obligations that are incurred for the purpose of fixing or hedging interest or foreign currency exchange rate risk with respect to any floating rate Indebtedness or foreign currency based Indebtedness, respectively, that is permitted by this Indenture to be incurred;
(viii) outstanding; provided that the incurrence by notional amount of any such Hedging Obligation does not exceed the Company or any of its Subsidiaries that are Subsidiary Guarantors amount of Indebtedness (in addition or other liability to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000which such Hedging Obligation relates;
(ix) the incurrence by the Company's Unrestricted Issuer and its Restricted Subsidiaries may incur Indebtedness solely in respect of Non-Recourse Debtbankers acceptances, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(x) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of creditcredit and performance bonds, surety bonds or performance bonds securing all in the performance ordinary course of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; and
(xi) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtedness.
Appears in 1 contract
Sources: Purchase Agreement (Intira Corp)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not(a) Incur any Indebtedness (including Acquired Debt), and shall the Borrower will not permit any of its Subsidiaries and Unrestricted 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 Indebtedness) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company Borrower and the Restricted Subsidiaries may incur Indebtedness (including Acquired IndebtednessDebt) or issue shares of Disqualified Stock and the Company's Restricted Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) stock, if the Fixed Charge Coverage Ratio for the Company's Borrower’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock preferred stock is issued would have been at least 2 2.00 to 11.00, determined on a pro forma basis Pro Forma Basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, incurred or the Disqualified Stock preferred stock had been issued, as the case may be, at the beginning of such four-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, further, that no Guarantee the aggregate amount of Indebtedness (including Acquired Debt) that may be incurred and preferred stock that may be issued pursuant to this paragraph unless the guaranteed Indebtedness is incurred foregoing by Restricted Subsidiaries that are not Guarantors of the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions Loans shall not apply to:exceed $25,000,000 at any one time outstanding.
(ib) Section 7.03(a) will not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):
(a) the incurrence by the Company Borrower or any Guarantor of Senior Revolving Debt and reimbursement obligations in respect of letters of credit Indebtedness under an ABL Facility (and the incurrence by the Guarantors of Guarantees thereof thereof) and (b) the incurrence by Subsidiaries a Receivables Subsidiary of Indebtedness that are is not recourse to the Borrower or any other Restricted Subsidiary Guarantorsof the Borrower (other than Standard Securitization Undertakings incurred in connection with a Qualified Receivables Transaction) in an aggregate principal amount at any one time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company Borrower and its Restricted Subsidiaries that are Subsidiary Guarantors thereunder) for Indebtedness incurred under clauses (a) and (b) not to exceed (as of any date of incurrence of Indebtedness pursuant to this clause (1) and after giving Pro Forma Effect to such incurrence and the application of the net proceeds therefrom) the greater of (x) $100,000,000 and (y) the Borrowing Base and in each case less any amount used to permanently repay such Indebtedness (or permanently reduce commitments with respect thereto) not pursuant to exceed an amount equal to $25,000,000Section 7.05 hereof;
(ii2) Indebtedness existing on the Closing Date and listed on Schedule 7.03(b) (“Existing Indebtedness”);
(3) the incurrence by the Company Borrower and its Subsidiaries any Guarantor of the Existing Indebtedness, including Obligations under this Agreement and the Senior Subordinated Notesother Loan Documents;
(iii4) the incurrence by the Company of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary Guarantees;
(iv) the incurrence by the Company Borrower or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or Purchase Money Obligationspurchase money obligations, in each case case, incurred for the purpose of financing all or any part of the purchase price price, or cost of construction or improvement improvement, of property (real or personal), plant or equipment used in the business of the Company Borrower or such Subsidiary, any of its Restricted Subsidiaries pursuant to this clause (4) in an aggregate principal amount not to exceed $10,000,000 50,000,000 at any time outstanding;
(v5) the incurrence by the Company Borrower or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was is permitted by this Indenture Agreement to be incurredincurred under Section 7.03(a) or this clause (5) or clauses (2), (17), (23) or (24) of this Section 7.03(b);
(vi6) the incurrence by the Company Borrower or any of its Wholly Owned Restricted Subsidiaries of intercompany Indebtedness between or among the Company Borrower and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Restricted Subsidiaries; provided, however, that:
(a) if the Borrower or any Guarantor is the obligor on such Indebtedness, and such Indebtedness is owed to a Restricted Subsidiary that is not a Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations, in the case of the Borrower, or the Guarantee, in the case of a Guarantor; and
(i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Borrower or a Wholly Owned Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company Borrower or a Wholly Owned Restricted Subsidiary thereof, shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);
(vii7) the incurrence by the Company Borrower or any of its Restricted Subsidiaries that are Subsidiary Guarantors of Hedging Obligations that are incurred in the ordinary course of business for the purpose of fixing fixing, hedging or hedging swapping interest rate, commodity price or foreign currency exchange rate risk with respect (or to reverse or amend any floating rate such agreements previously made for such purposes), and not for speculative purposes, and that do not increase the Indebtedness that is permitted of the obligor outstanding at any time other than as a result of fluctuations in interest rates, commodity prices or foreign currency exchange rates or by this Indenture to be incurredreason of fees, indemnities and compensation payable thereunder;
(viii8) the Guarantee by the Borrower or any Restricted Subsidiary of any obligations including Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower that was permitted to be incurred by another provision of this Section 7.03; provided that in the case of a Guarantee of any Restricted Subsidiary that is not a Guarantor, such Restricted Subsidiary complies with Section 6.11 to the extent required thereby;
(9) 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 will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred stock for purposes of this Section 7.03; provided, in each such case, that the amount thereof is included in Fixed Charges of the Borrower as accrued;
(10) the incurrence by the Company Borrower or any of its Restricted Subsidiaries that are Subsidiary Guarantors of Indebtedness (and cash management obligations in addition to respect of netting services, automatic clearinghouse arrangements, overdraft protectors, employee credit card programs and other cash management and similar arrangements, including Indebtedness permitted arising from the honoring by any a bank or other clause financial institution of this paragraph) a check, draft or similar instrument drawn against insufficient funds in an aggregate principal amount at any time outstanding not to exceed the sum ordinary course of $5,000,000business;
(ix11) the incurrence by the Company's Unrestricted Borrower or any of its Restricted Subsidiaries of NonIndebtedness constituting reimbursement obligations with respect to letters of credit and bank guarantees issued in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claims or self-Recourse Debtinsurance, or other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims or self-insurance; provided, however, that if any that, upon the drawing of such Indebtedness ceases to be Non-Recourse Debt letters of an Unrestricted Subsidiarycredit or the incurrence of such Indebtedness, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Companyobligations are reimbursed within 30 days following such drawing or incurrence;
(x12) Indebtedness incurred the incurrence by the Company Borrower or any of its Restricted Subsidiaries that is a Subsidiary Guarantor of Indebtedness arising from agreements of the Borrower or such Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or from guarantees assumed in connection with the disposition of letters of creditany business, surety bonds assets or performance bonds securing the performance Capital Stock of the Company Borrower or any a Restricted Subsidiary, other than Guarantees of its Subsidiaries Indebtedness incurred by any Person acquiring all or a any portion of such business, assets of or a Subsidiary of the Company for the purpose of financing such acquisition; provided that the maximum assumable liability in respect of that Indebtedness shall at no time exceed the gross proceeds including non-cash proceeds (the Fair Market Value of those non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Borrower and/or that Restricted Subsidiary in connection with that disposition;
(13) the issuance of Disqualified Stock or preferred stock by any of the Borrower’s Restricted Subsidiaries issued to the Borrower or another Restricted Subsidiary; provided that (i) any subsequent issuance or transfer of any equity securities that results in such Disqualified Stock or preferred stock being held by a Person other than the Borrower or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such shares of Disqualified Stock or preferred stock to a Person that is not either the Borrower or a Restricted Subsidiary thereof shall be deemed, in each case, to constitute an issuance of such shares of Disqualified Stock or preferred stock that was not permitted by this clause (13);
(14) the incurrence by the Borrower or any of its Restricted Subsidiaries of obligations in respect of performance and surety bonds and completion guarantees provided by the Borrower or such Restricted Subsidiary in the ordinary course of business;
(15) the incurrence by the Borrower or any Guarantor of Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding incurred pursuant to this clause (15) not to exceed $20,000,000;
(16) the incurrence by the Foreign Restricted Subsidiaries of the Borrower of Indebtedness in an aggregate principal amount at any one time outstanding (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Restricted Subsidiaries thereunder) incurred pursuant to this clause (16) not to exceed $10,000,000;
(17) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(18) the incurrence by the Borrower of Indebtedness to effect the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Borrower or any Parent, in each case held by any former or current employees, officers, directors or consultants of the Borrower or any of its Restricted Subsidiaries or their respective estates, spouses, former spouses or family members under any management equity plan or stock option or other management or employee benefit plan upon the death, disability or termination of employment of such Persons in an aggregate amount at any one time outstanding not to exceed the maximum amount of such acquisitions pursuant to Section 7.06(b)(5);
(19) the incurrence of Indebtedness of the Borrower or any Restricted Subsidiary supported by a letter of credit issued pursuant to the ABL Credit Agreement in a principal amount not in excess of the stated amount of such letter of credit; and
(20) contingent liabilities related to customary earn-outs, purchase price adjustments and indemnities in acquisition agreements and otherwise permitted under this Agreement; provided that the amount of such contingent liabilities shall not exceed 25the Fair Market Value of assets acquired (in the case of an acquisition) or the purchase price paid to the Borrower or a Restricted Subsidiary (in the case of a disposition); and
(21) Credit Agreement Refinancing Indebtedness, 100% of the gross proceeds Net Proceeds of which are applied to repay outstanding Term Loans in accordance with Section 2.05(b)(iii);
(22) Indebtedness represented by the Senior Secured Notes on the Closing Date (after giving effect to the Transactions); and
(23) Indebtedness of the Borrower in respect of one or more series of senior unsecured notes or loans or senior secured first lien notes or senior secured junior lien notes or loans, in each case issued in a public offering, Rule 144A or other private placement pursuant to an indenture, credit agreement, a bridge facility in lieu of the foregoing or otherwise in an aggregate principal amount not to exceed the Incremental Amount (the “Incremental Equivalent Debt”); provided that (i) such Incremental Equivalent Debt shall not be subject to any Guarantee by any Person other than a Loan Party, (ii) in the case of Incremental Equivalent Debt that is secured, the obligations in respect thereof shall not be secured by any Lien on any asset of the Borrower or any Restricted Subsidiary other than any asset constituting Collateral, (iii) if such Incremental Equivalent Debt is secured, the security agreements relating to such Incremental Equivalent Debt shall be substantially the same as the Collateral Documents (with proceeds such differences as are reasonably satisfactory to the Administrative Agent), (iv) if such Incremental Equivalent Debt is (a) secured on a pari passu basis with the Obligations, then such Incremental Equivalent Debt shall be subject to the First Lien Intercreditor Agreement or (b) secured on a junior basis to the Obligations, then such Incremental Equivalent Debt shall be subject to the Junior Lien Intercreditor Agreement, (v) the documentation with respect to any junior secured or unsecured Incremental Equivalent Debt provide that mandatory redemptions of any such Incremental Equivalent Debt may not be made, except to the extent that prepayments are made, to the extent required hereunder, first pro rata to the Term Loans, Incremental Term Loans and any Incremental Equivalent Debt or Credit Agreement Refinancing Indebtedness secured on a first lien basis, (vi) such Incremental Equivalent Debt is subject to covenants no more restrictive (taken as a whole) than those under this Agreement, and (vii) such Incremental Equivalent Debt (other than cash senior secured first lien notes) does not mature on or Cash Equivalents being valued at prior to the fair market value thereof as determined by date occurring 91 days after the Board maturity date of, or have a shorter Weighted Average Life to Maturity than, any Term Loans or Incremental Term Loans.
(24) Indebtedness or preferred stock of Directors of (i) the Company in good faith) actually received by the Company Borrower or any of its Restricted Subsidiaries in connection with such disposition; and
incurred or issued to finance an acquisition or (xiii) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction Persons that is without recourse to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness permitted are acquired by the Borrower or any of its Restricted Subsidiaries or merged into, amalgamated with or consolidated with the Borrower or a Restricted Subsidiary in accordance with the terms hereof (including designating an Unrestricted Subsidiary as a Restricted Subsidiary); provided, however, that after giving effect to such acquisition, merger, amalgamation or consolidation and the Incurrence of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtedness.or preferred stock, either:
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company Issuers shall not, and shall not permit any of its Subsidiaries and Unrestricted their respective 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 IndebtednessDebt) and the Company Issuers shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted their respective Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company Issuers or any of the Subsidiary Guarantors may incur Indebtedness (including Acquired Indebtedness) or Debt), the Issuers may issue shares of Disqualified Stock and any of the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) if the Fixed Charge Coverage Ratio for the Company's Issuers' most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or preferred stock is issued would have been at least 2 2.0 to 11.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock or preferred stock had been issued, as the case may be, at the beginning of such four-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions first paragraph of this Section 4.09 shall not apply to:prohibit the incurrence of any or the following items of Indebtedness (collectively, "Permitted Debt"):
(i1) the incurrence by the Company an Issuer or any Restricted Subsidiary of Senior Revolving Debt an Issuer of Indebtedness and reimbursement obligations in respect of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal pursuant to the maximum potential liability Senior Credit Facilities; provided that the aggregate amount of all Indebtedness then classified as having been incurred in reliance upon this clause (1) that remains outstanding under the Company and its Subsidiaries that are Subsidiary Guarantors with respect thereto) Senior Credit Facilities after giving effect to such incurrence does not to exceed an amount equal to $25,000,000450.0 million less, to the extent a permanent repayment and/or commitment reduction is required thereunder as a result of such application, the aggregate amount of Net Proceeds applied to repayments under the Senior Credit Facilities in accordance with Section 4.10;
(ii2) the incurrence by an Issuer or any Restricted Subsidiary of an Issuer of Existing Indebtedness;
(3) the incurrence by the Company Issuers and its Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) the incurrence by the Company Subsidiary Guarantors of Indebtedness represented by the Notes originally issued on the date of this Indenture and by the Subsidiaries of Indebtedness represented by the Subsidiary Guarantees, and the Exchange Securities to be issued pursuant to the Registration Rights Agreement in respect thereof;
(iv4) the incurrence by the Company an Issuer or any Restricted Subsidiary of its Subsidiaries an Issuer of Indebtedness represented by Capital Lease Obligations, mortgage financings or Purchase Money Obligationspurchase 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 property, plant or equipment used or useful in the business of the Company an Issuer or such Subsidiary, Restricted Subsidiary (whether through the direct purchase of assets or the Capital Stock of any Person owning such Assets) in an aggregate principal amount or accreted value, as applicable, not to exceed $10,000,000 at any time outstandingoutstanding the greater of $25.0 million and 2.5% of Total Assets at the time of any incurrence under this clause (4);
(v5) the incurrence by the Company an Issuer or any Restricted Subsidiary of an Issuer 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 an Issuer or one of its Subsidiaries and was not incurred in connection with, or in contemplation of, such acquisition by an Issuer or a Subsidiary of an Issuer; 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 (5), and Permitted Refinancing Indebtedness in respect thereof, does not exceed $25.0 million;
(6) the incurrence by an Issuer or any Restricted Subsidiary of an Issuer of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, refinance or replace Indebtedness that was permitted by incurred pursuant to the first paragraph of this Indenture to be incurredSection 4.09, clause (2) or (3) above or this clause (6);
(vi7) the incurrence by the Company an Issuer or any Restricted Subsidiary of its Wholly Owned Subsidiaries an Issuer of intercompany Indebtedness between or among the Company an Issuer and another Issuer or between an Issuer and any Restricted Subsidiary of its Wholly Owned Subsidiaries or between or among any Wholly Owned Subsidiariesan Issuer; provided, however, that that:
(a) if an Issuer or any Subsidiary Guarantor is the obligor on such Indebtedness and the payee is not the Issuer or a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of an Issuer, or the Guarantee of such Subsidiary Guarantor, in the case of a Subsidiary Guarantor; and
(i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than an Issuer or a Wholly Owned Restricted Subsidiary and of an Issuer or (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company an Issuer or a Wholly Owned Restricted Subsidiary of an Issuer shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company such Issuer or such Restricted Subsidiary, as the case may be, not permitted by this clause (7);
(vii) 8) the incurrence by the Company an Issuer or any Restricted Subsidiary of its Subsidiaries that are Subsidiary Guarantors an Issuer 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 incurredoutstanding;
(viii9) the Guarantee by an Issuer or a Subsidiary Guarantor of Indebtedness of an Issuer or a Subsidiary Guarantor that was permitted to be incurred by another provision of this Section 4.09;
(10) the issuance by a Restricted Subsidiary of an Issuer to an Issuer or any Restricted Subsidiary that is a Wholly-Owned Subsidiary of an Issuer of preferred stock; provided that (a) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than an Issuer or a Subsidiary Guarantor and (b) any sale or other transfer of any such preferred stock to a Person that is neither an Issuer nor a Restricted Subsidiary of an Issuer shall be deemed, in each case, to constitute an issuance of such preferred stock by such Subsidiary Guarantor that is not permitted by this clause (10);
(11) the incurrence by the Company an Issuer or any Restricted Subsidiary of its Subsidiaries that are Subsidiary Guarantors an Issuer in respect of Indebtedness (workers' compensation claims, self-insurance obligations, indemnities, bankers' acceptances, performance, completion and surety bonds or guarantees, and similar types of obligations in addition to Indebtedness permitted by any other clause the ordinary course of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000business;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(x12) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements of an Issuer or any Restricted Subsidiary of an Issuer providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or from assumed in connection with the disposition of any business, asset or Subsidiary, other than guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries Indebtedness incurred by any Person acquiring all or a any portion of such business, assets of a or Subsidiary of the Company for the purpose of financing such acquisition, ; provided that (a) such Indebtedness is not reflected on the balance sheet of an Issuer or any Restricted Subsidiary of an Issuer (contingent obligations referred to in a principal amount footnote or footnotes to financial statements and not otherwise reflected on the balance sheet shall not be deemed to be reflected on such balance sheet for purposes of this clause (a)) and (b) the maximum assumable liability in respect of such Indebtedness shall at no time exceed 25% of the gross proceeds including non-cash proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by of such non-cash proceeds being measured at the Board of Directors of the Company time received and without giving effect to any such subsequent changes in good faithvalue) actually received by the Company or any of its Subsidiaries such Issuer and/or such Restricted Subsidiary in connection with such disposition;
(13) the incurrence by an Issuer or any Restricted Subsidiary of an Issuer 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;
(14) Indebtedness of the type described in clause (6)(a) of the definition thereof together with contingent liabilities arising out of transactions contemplated thereby not to exceed $20.0 million at any one time outstanding; and
(xi15) the incurrence by a Receivables an Issuer or any Restricted Subsidiary of an Issuer 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 other Indebtedness incurred pursuant to this clause (15), not to exceed $25,000,000 25.0 million. For purposes of determining compliance with this Section 4.09, in a Qualified Receivables Transaction 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 (15) above or is without recourse entitled to be incurred pursuant to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision first paragraph of this covenantSection 4.09, a Guarantee the Issuers shall be permitted to classify such item of Indebtedness permitted by in any manner that complies with this Section 4.09 (except that Indebtedness incurred under the terms Senior Credit Facilities on the date of this Indenture shall be deemed to have been incurred pursuant to clause (1) above). In addition, the Issuers may, at any time, change the classification of an item of Indebtedness (or any portion thereof) to any other clause or to the first paragraph of this Section 4.09 hereof; provided that the Issuers would be permitted to incur such item of Indebtedness (or portion thereof) pursuant to such other clause or the first paragraph of this Section 4.09 hereof, as the case may be, at such time such of reclassification. The accrual of interest, the accrual of dividends, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness was incurred in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock shall not constitute a separate be deemed to be an incurrence of IndebtednessIndebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company Issuer shall not, and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee guaranty or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, "incur") any Indebtedness (including Acquired IndebtednessDebt) and the Company Issuer and the Restricted Subsidiaries shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries to issue any or shares of preferred stock; provided, however, that the Company Issuer and its Subsidiaries may incur Indebtedness (including Acquired IndebtednessDebt and Indebtedness under the New Credit Facility) or issue shares of Disqualified Stock and the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue or preferred stock if: :
(i) the 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 such Disqualified Stock is issued would have been at least 2 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing at the time of or would occur after giving effect to such incurrence;
(ii) in the case of the incurrence of Subordinated Indebtedness by the Issuer, after giving effect to such incurrence (including the pro forma application of the net proceeds therefrom), the Consolidated Interest Coverage Ratio is greater than [2.0 to 1.0]; provided, that so long as any Indebtedness incurred pursuant to clause (iii) of this Section 4.09 shall remain outstanding, such Consolidated Interest Coverage Ratio shall be greater than [2.5 to 1.0]; and
(iii) in the case of the incurrence of any Indebtedness other than Subordinated Indebtedness by the Issuer or the incurrence of any Indebtedness by a consequence Restricted Subsidiary, after giving effect to such incurrence (including the pro forma application of the net proceeds thereof), the Consolidated Interest Coverage Ratio is greater than [2.5 to 1.0]; provided, that no Guarantee may incurrence of Indebtedness shall be permitted pursuant to this clause (iii) prior to _________,___ and provided, further, that the aggregate principal amount of Indebtedness permitted to be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraphclause (iii) shall not exceed [$200,000,000] at any one time outstanding. The foregoing provisions shall of the first paragraph of this covenant will not apply to:to the incurrence of any of the following items of Indebtedness, which shall be permitted notwithstanding anything otherwise to the contrary (collectively, "Permitted Debt"):
(i) the incurrence by the Company Issuer or any of Senior Revolving Debt its Subsidiaries of Indebtedness under the New Credit Facility and reimbursement obligations in respect the issuance of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries that are Subsidiary Guarantors with respect thereto) not to exceed an amount equal to $25,000,000thereunder;
(ii) the incurrence by the Company Issuer and its Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) the incurrence by the Company Issuer and the Subsidiary Guarantors of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary GuaranteesNotes;
(iv) the incurrence by the Company Issuer or any of its Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or Purchase Money Obligationspurchase 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 property, plant or equipment used in the business of the Company Issuer or such Subsidiary, in an aggregate principal amount not to exceed $10,000,000 ______ million at any time outstanding;
(v) the incurrence by the Company Issuer or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, refinance or replace Indebtedness that was permitted by this Indenture to be incurred;
(vi) Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to surety bonds or letters of credit issued in the ordinary course of business, including, without limitation, surety bonds or letters of credit in respect of workers' compensation claims or self-insurance, or other Indebtedness with respect to reimbursement type obligations regarding workers' compensation claims;
(vii) the incurrence by the Company Issuer or any of its Wholly Owned Restricted Subsidiaries of intercompany Indebtedness between or among the Company Issuer and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Restricted Subsidiaries; provided, however, that (i) if the Issuer is the obligor on such Indebtedness and the payee is not a Subsidiary Guarantor, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes and (ii)(A) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Issuer or a Wholly Owned Restricted Subsidiary and (iiB) any sale or other transfer of any such Indebtedness to a Person that is not either the Company Issuer or a Wholly Owned Restricted Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company Issuer or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vii);
(viiviii) the incurrence by the Company Issuer or any of its Subsidiaries that are Subsidiary Guarantors of Hedging Obligations Obligations;
(ix) Indebtedness incurred pursuant to the terms and provisions, and in connection with the implementation of the Plan;
(x) the Guaranty by the Issuer or any of its Subsidiaries of Indebtedness of the Issuer or a Restricted Subsidiary of the Issuer that are incurred for the purpose of fixing or hedging interest rate risk with respect to any floating rate Indebtedness that is was permitted by this Indenture to be incurred;
(viiixi) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse DebtDebt and the issuance of preferred stock by the Issuer's Unrestricted Subsidiaries, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the CompanyIssuer;
(xxii) Indebtedness incurred the incurrence by the Company Issuer or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnificationof additional Indebtedness, adjustment of purchase price in an aggregate principal amount (or similar obligationsaccreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or from guarantees of letters of creditreplace any other Indebtedness incurred pursuant to this clause (xi), surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets not to exceed $____ million;
(xiii) Acquired Debt of a Subsidiary in existence at the time of the Company for the purpose acquisition of financing such acquisitionSubsidiary, if such Acquired Debt was not incurred in a principal amount not contemplation of such acquisition and such Acquired Debt is Non-Recourse Debt (except with respect to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of such acquired Subsidiary and its Subsidiaries in connection with such dispositionSubsidiaries); and
(xixiv) Asset Sales in the incurrence by a form of Receivables Subsidiary Transactions. For purposes of determining compliance with this covenant, if an item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xii) above or is entitled to be incurred pursuant to the first paragraph of this Section 4.09, the Issuer shall, in its sole discretion, classify such item of Indebtedness in an amount not any manner that complies with this covenant and such item of Indebtedness will be treated as having been incurred pursuant to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse only one of such clauses or pursuant to the Company or first paragraph hereof. Neither the accrual of interest, nor the accretion of accreted value will be deemed to any Subsidiary be an incurrence of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision Indebtedness for purposes of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of IndebtednessSection 4.09.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company (a) the Issuer shall not, and shall not permit any of its Subsidiaries and Unrestricted 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, "incurINCUR") any Indebtedness (including Acquired Indebtedness), (b) the Issuer will not, and the Company shall not issue any Disqualified Stock and shall will not permit any of its Restricted Subsidiaries to, issue any shares of Disqualified Stock and Unrestricted (c) the Issuer will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, PROVIDED that the Company Issuer or any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) if the Fixed Charge Coverage Ratio for the CompanyIssuer's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 2 2.0 to 1, determined on a consolidated pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall of the first paragraph of this Section 4.09 will not apply to:to the incurrence of any of the following items of Indebtedness (collectively, "PERMITTED INDEBTEDNESS"):
(i) the incurrence by the Company Issuer and its Restricted Subsidiaries of Senior Revolving Debt and reimbursement obligations in respect of letters of credit (and Guarantees thereof by Subsidiaries Indebtedness under the New Credit Facility; PROVIDED that are Subsidiary Guarantors) in an the aggregate principal amount at any time outstanding of all Indebtedness (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company Issuer and its such Restricted Subsidiaries thereunder) then classified as having been incurred in reliance upon this clause (i) that are Subsidiary Guarantors with respect thereto) remains outstanding under the New Credit Facility after giving effect to such incurrence does not to exceed an amount equal to $25,000,000150.0 million;
(ii) the incurrence by the Company Issuer and its Restricted Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) the incurrence by the Company Issuer of Indebtedness represented by the Notes and this Indenture and by the Subsidiaries Guarantors of Indebtedness represented by the Subsidiary Note Guarantees;
(iv) the incurrence by the Company Issuer and its Restricted Subsidiaries of Indebtedness denominated in Swiss francs (or a European common currency as a result of the implementation of European Monetary Union and the cessation of use of Swiss francs as the lawful currency of Switzerland) in an aggregate principal amount (or accreted value, as applicable) not to exceed $4.0 million outstanding after giving effect to such incurrence;
(v) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness represented by Capital Expenditure Indebtedness, Capital Lease Obligations, mortgage financings Obligations or Purchase Money Obligationspurchase money obligations, in each case case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property property, plant or equipment used in the business of the Company Issuer or such Restricted Subsidiary, in an aggregate principal amount (or accreted value, as applicable) not to exceed $10,000,000 at any time outstanding15.0 million outstanding after giving effect to such incurrence;
(vvi) Indebtedness arising from agreements of the Issuer or any 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, assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition; PROVIDED that (A) such Indebtedness is not reflected on the balance sheet of the Issuer or any Restricted Subsidiary (contingent obligations referred to in a footnote or footnotes to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (A)) and (B) the maximum assumable liability in respect of such Indebtedness 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/or such Restricted Subsidiary in connection with such disposition;
(vii) the incurrence by the Company Issuer or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred;
(viviii) the incurrence by the Company Issuer or any of its Wholly Owned Restricted Subsidiaries of intercompany Indebtedness between or among the Company and Issuer and/or any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Restricted Subsidiaries; provided, however, PROVIDED that (i) if the Issuer is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes and (ii)(A) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Issuer 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 the Company Issuer or a Wholly Owned Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company Issuer or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (viii);
(viiix) the incurrence by the Company Issuer or any of its Restricted Subsidiaries that are Subsidiary Guarantors of Hedging Obligations that are incurred for the purpose of fixing or hedging (A) interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms of this Indenture to be incurred;
outstanding and (viiiB) exchange rate risk with respect to agreements or Indebtedness of such Person payable denominated in a currency other than U.S. dollars, PROVIDED that such agreements do not increase the incurrence by Indebtedness of the Company or any of its Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount obligor outstanding at any time outstanding not to exceed the sum other than as a result of $5,000,000;
(ix) the incurrence fluctuations in foreign currency exchange rates or interest rates or by the Company's Unrestricted Subsidiaries reason of Non-Recourse Debtfees, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Companyindemnities and compensation payable thereunder;
(x) Indebtedness incurred the guarantee by the Company Issuer or any of its Restricted Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance Indebtedness of the Company or any of its Subsidiaries incurred by any Person acquiring all Issuer or a portion of such business, assets of a Restricted Subsidiary of the Company for the purpose Issuer that was permitted to be incurred by another provision of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; andthis Section 4.09;
(xi) the incurrence by a Receivables Subsidiary the Issuer or any of its Restricted Subsidiaries of Acquired Indebtedness in an aggregate principal amount (or accreted value, as applicable) not to exceed $25,000,000 10.0 million outstanding after giving effect to such incurrence;
(xii) obligations in a Qualified Receivables Transaction respect of performance and surety bonds and completion guarantees provided by the Issuer or any Restricted Subsidiary in the ordinary course of business; and
(xiii) the incurrence by the Issuer or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) outstanding after giving effect to such incurrence, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xiii), not to exceed $20.0 million. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (i) through (xiii) above or is without recourse entitled to be incurred pursuant to the Company first paragraph of this Section 4.09, the Issuer shall, in its sole discretion, classify such item of Indebtedness in any manner that complies with this Section 4.09 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 of this Section 4.09. In addition, the Issuer may, at any time, change the classification of an item of Indebtedness (or any portion thereof) to any other clause or to any Subsidiary the first paragraph hereof PROVIDED that the Issuer would be permitted to incur such item of Indebtedness (or such portion thereof) pursuant to such other clause or the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision first paragraph of this covenantSection 4.09, a Guarantee as the case may be, at such time of reclassification. Accrual of interest, accretion or amortization of original issue discount will not be deemed to be an incurrence of Indebtedness permitted by for purposes of this Section 4.09. All Indebtedness under the terms New Credit Facility outstanding on the date of this Indenture at shall be deemed to have been incurred on such date in reliance on the time such Indebtedness was incurred shall not constitute a separate incurrence first paragraph of Indebtednessthis Section 4.09.
Appears in 1 contract
Sources: Indenture (Decrane Holdings Co)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company Borrower shall not, and shall not permit any of its Subsidiaries and Unrestricted 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 IndebtednessDebt) and the Company Borrower shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company Borrower may incur Indebtedness (including Acquired IndebtednessDebt) or issue shares of Disqualified Stock and the CompanyBorrower's Restricted Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and (including Acquired Debt) or issue preferred stock if: (i) , in each case, the Fixed Charge Coverage Borrower's Debt to Adjusted Consolidated Cash Flow Ratio for at the Company's time of incurrence of such Indebtedness or the issuance of such preferred stock, after giving pro forma effect to such incurrence or issuance as of such date and to the use of proceeds therefrom as if the same had occurred at the beginning of the most recently ended four full fiscal quarters quarter period of the Borrower for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued available, would have been at least 2 no greater than 7.5 to 1, determined on a pro forma basis (including a pro forma application . The provisions of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning first paragraph of such four-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions covenant shall not apply to:to the incurrence of any of the following items of Indebtedness or the issuance of any of the following items of Disqualified Stock or preferred stock (collectively, "Permitted Debt"):
(i) the incurrence by the Company Borrower or any of its Restricted Subsidiaries of Indebtedness under Credit Facilities since the date of the August 1999 Senior Revolving Debt and reimbursement obligations in respect of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) Discount Note Indenture in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company Borrower and its Restricted Subsidiaries that are Subsidiary Guarantors with respect theretothereunder) at any one time outstanding not to exceed an amount equal to the product of $25,000,000150,000 times the number of Completed Towers on the date of such incurrence;
(ii) the incurrence by the Company Borrower and its Restricted Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) the incurrence by the Company Borrower of Indebtedness represented by the 9% Senior Notes due 2011 and by the Subsidiaries 10-3/8% Senior Discount Notes due 2011, each issued on the date of Indebtedness represented by the Subsidiary GuaranteesMay 1999 Senior Discount Note Indenture;
(iv) the issuance by the Borrower of additional shares of its 12-3/4% Senior Exchangeable Preferred Stock due 2010 solely for the purpose of paying dividends thereon and the incurrence by the Company Borrower of Indebtedness represented by the Borrower's 12-3/4% Senior Subordinated Exchange Debentures due 2010;
(v) the incurrence by the Borrower or any of its Restricted Subsidiaries since the date of the August 1999 Senior Discount Note Indenture of Indebtedness represented by Capital Lease Obligations, mortgage financings or Purchase Money Obligationspurchase 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 property, plant or equipment used in the business of the Company Borrower or such Restricted Subsidiary, in an aggregate principal amount amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other indebtedness incurred pursuant to this clause (v), not to exceed $10,000,000 10.0 million at any time outstanding;
(vvi) the incurrence by the Company Borrower or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, refund Indebtedness of the Borrower or any of its Restricted Subsidiaries or Disqualified Stock of the Borrower (other than intercompany Indebtedness) that was permitted by this Indenture Agreement to be incurredincurred under the first paragraph of this Section 4.9 or clauses (ii), (iii), (iv), (v) or this clause (vi) of this paragraph;
(vivii) the incurrence by the Company Borrower or any of its Wholly Owned Restricted Subsidiaries of intercompany Indebtedness between or among the Company Borrower and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Restricted Subsidiaries; provided, however, that (i) if the Borrower is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Term Notes and (ii) (a) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Borrower or a Wholly Owned Restricted Subsidiary and (iib) any sale or other transfer of any such Indebtedness to a Person that is not either the Company Borrower or a Wholly Owned Restricted Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness indebtedness by the Company Borrower or such Restricted Subsidiary, as the case may be;
(viiviii) the incurrence by the Company Borrower or any of its Restricted Subsidiaries that are Subsidiary Guarantors 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 Section 4.9 to be incurred;
(viii) the incurrence by the Company outstanding or any of its Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000currency exchange risk;
(ix) the incurrence guarantee by the Company's Unrestricted Borrower or any of its Restricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by the Borrower or a Restricted Subsidiary of the CompanyBorrower that was permitted to be incurred by another provision of this Section 4.9;
(x) Indebtedness incurred the incurrence by the Company Borrower or any of its Restricted Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries Acquired Debt in connection with the acquisition of assets or a new Subsidiary and the incurrence by the Borrower's Restricted Subsidiaries of Indebtedness as a result of the designation of an Unrestricted Subsidiary as a Restricted Subsidiary; provided that, in the case of any such dispositionincurrence of Acquired Debt, such Acquired Debt was incurred by the prior owner of such assets or such Restricted Subsidiary prior to such acquisition by the Borrower or one of its Restricted Subsidiaries and was not incurred in connection with, or in contemplation of, such acquisition by the Borrower or one of its Restricted Subsidiaries; andand provided further that, in the case of any incurrence pursuant to this clause (x), as a result of such acquisition by the Borrower or one of its Restricted Subsidiaries, the Borrower's Debt to Adjusted Consolidated Cash Flow Ratio at the time of the incurrence of such Acquired Debt, after giving pro forma effect to such incurrence as if the same had occurred at the beginning of the most recently ended four full fiscal quarter period of the Borrower for which internal financial statements are available, would have been less than the Borrower's Debt to Adjusted Consolidated Cash Flow Ratio for the same period without giving pro forma effect to such incurrence;
(xi) the incurrence by a Receivables Subsidiary the Borrower or any of is Restricted Subsidiaries of Indebtedness in an amount or Disqualified Stock not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse to exceed, at any one time outstanding, the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtedness.sum of:
Appears in 1 contract
Sources: Term Loan Agreement (Crown Castle International Corp)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company NEHC shall not, and shall not permit any of its Subsidiaries and Unrestricted 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 IndebtednessDebt) and the Company shall NEHC will not issue any Disqualified Stock and shall will not permit any of its Subsidiaries and Unrestricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company NEHC may incur Indebtedness (including Acquired IndebtednessDebt) or issue shares of Disqualified Stock and the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) if the Fixed Charge Coverage Ratio for the CompanyNEHC's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 2 2.0 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall of the first paragraph of this covenant will not apply to:to the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(i) the incurrence by the Company Restricted Subsidiaries of Senior Revolving Debt and reimbursement obligations in respect NEHC of letters of credit (and Guarantees thereof by Subsidiaries term Indebtedness under the New Credit Facility; provided that are Subsidiary Guarantors) in an the aggregate principal amount at any time of all term Indebtedness outstanding (with letters under the New Credit Facility after giving effect to such incurrence does not exceed the aggregate amount of credit obligations being deemed to have a principal term Indebtedness borrowed under the New Credit Facility on the date hereof less the aggregate amount equal to the maximum potential liability of all repayments, optional or mandatory, of the Company and its Subsidiaries that are Subsidiary Guarantors with respect thereto) not to exceed an amount equal to $25,000,000;
(ii) the incurrence by the Company and its Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) the incurrence by the Company of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary Guarantees;
(iv) the incurrence by the Company or any of its 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 used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $10,000,000 at any time outstanding;
(v) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, Indebtedness that was permitted by this Indenture to be incurred;
(vi) the incurrence by the Company or any of its Wholly Owned Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Subsidiaries; provided, however, that (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than a Wholly Owned Subsidiary and (ii) any sale or other transfer of any such term Indebtedness to a Person that is not either under the Company or a Wholly Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(vii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors 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 this Indenture to be incurred;
(viii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(x) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; and
(xi) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtedness.New Credit
Appears in 1 contract
Sources: Indenture (Nebco Evans Holding Co)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall (a) ACEP will not, and shall will not permit any of its Subsidiaries and Unrestricted 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 Indebtedness) Debt), and the Company shall ACEP will not issue any Disqualified Stock and shall will not permit any of its Subsidiaries and Unrestricted Subsidiaries to issue any shares of preferred stock.
(b) The provisions of Section 4.09(a) hereof will not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):
(1) the incurrence by ACEP of Indebtedness under a Credit Facility and the issuance and creation of letters of credit thereunder (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of ACEP and its Subsidiaries thereunder) up to an aggregate principal amount at any one time outstanding not to exceed $20.0 million; provided, however, that such Indebtedness may only be incurred if the Company may incur Secured Indebtedness (including Acquired Indebtedness) or issue shares Leverage Ratio of Disqualified Stock ACEP and the Company's its Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) the 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 such Disqualified Stock is issued would have been at least 2 less than or equal to 13.75 to 1.00, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the such additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, incurred at the beginning of such four-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall not apply to:;
(i2) obligations contained in a customary owner’s affidavit to a title policy;
(3) obligations to return or repay tenant security deposits;
(4) contractual indemnity obligations entered into in the ordinary course of business in connection with the normal course of operation of the Properties;
(5) the incurrence by the Company of Senior Revolving Debt Issuers and reimbursement obligations in respect of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries that are Subsidiary Guarantors with respect thereto) not to exceed an amount equal to $25,000,000;
(ii) the incurrence by the Company and its Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) the incurrence by the Company of Indebtedness represented by the notes and the related Note Guarantees to be issued on the date of this Indenture and the Exchange Notes and by the Subsidiaries of Indebtedness represented by related Note Guarantees to be issued pursuant to the Subsidiary GuaranteesRegistration Rights Agreement;
(iv6) the incurrence by the Company ACEP or any of its Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or Purchase Money Obligationspurchase money obligations, in each case case, incurred for the purpose of financing all or any part of the purchase price or cost of construction design, construction, installation or improvement of property property, plant or equipment used in the business of the Company ACEP or such Subsidiaryany of its Subsidiaries, in an aggregate principal amount amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (6), not to exceed $10,000,000 5.0 million at any time outstanding;
(v7) the incurrence by ACEP or any of its Subsidiaries of Indebtedness arising in respect of (i) letters of credit, bankers’ acceptances, worker’s compensation claims, payment obligations in connection with self-insurance or similar obligations and bid, appeal and surety bonds, in each case in the Company ordinary course of business and (ii) completion guarantees (to the extent that the incurrence thereof does not result in the incurrence of any direct or indirect obligation for the payment of borrowed money of others);
(8) the incurrence by ACEP or any of its Subsidiaries of Indebtedness arising from agreements of ACEP or its Subsidiaries providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or properties or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or properties or a Subsidiary for the purpose of financing such acquisition; provided, however, that:
(a) such Indebtedness is not reflected on the balance sheet of ACEP or any of its Subsidiaries (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this subclause (a)); and
(b) the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the net 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 ACEP and its Subsidiaries in connection with such disposition.
(9) the incurrence by ACEP or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extendrenew, refund, refinance, renew, replace, defease or refund, discharge any Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture the indenture to be incurredincurred under clauses (5), (6), (9), (14) and (15) of this Section 4.09(b);
(vi10) the incurrence by the Company ACEP or any of its Wholly Owned Subsidiaries the Guarantors of intercompany Indebtedness between or among the Company ACEP and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Subsidiariesthe Guarantors; provided, however, that that: (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than ACEP or a Wholly Owned Subsidiary Guarantor and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company ACEP or a Wholly Owned Subsidiary shall Guarantor, will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company ACEP or such SubsidiaryGuarantor, as the case may be, that was not permitted by this clause (10);
(vii11) the issuance by any of ACEP’s Subsidiaries to ACEP or to any of its Subsidiaries 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 ACEP or a Subsidiary of ACEP; and
(b) any sale or other transfer of any such preferred stock to a Person that is not either ACEP or a Subsidiary of ACEP, will be deemed, in each case, to constitute an issuance of such preferred stock by such Subsidiary that was not permitted by this clause (11);
(12) the guarantee by ACEP or any of the Guarantors of Indebtedness of ACEP or a Subsidiary of ACEP to the extent that the guaranteed Indebtedness was permitted to be incurred by another provision of this covenant; 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;
(13) the incurrence by the Company ACEP or any of its Subsidiaries that are Subsidiary Guarantors of Hedging Obligations that are incurred for Indebtedness arising from the purpose honoring by a bank or other financial institution of fixing a check, draft or hedging interest rate risk with respect to any floating rate similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness that is permitted by this Indenture to be incurredcovered within five Business Days;
(viii14) the incurrence by the Company ACEP or any of its Subsidiaries that are Subsidiary Guarantors of the Existing Indebtedness; and
(15) the incurrence by ACEP or any of its Subsidiaries of additional Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount (or accreted value, as applicable) at any time outstanding outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (15), not to exceed $7.0 million. ACEP will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of ACEP or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the sum of $5,000,000;
(ix) notes and the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, applicable Note Guarantee on substantially identical terms; provided, however, that if any such no Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall will be deemed to constitute be contractually subordinated in right of payment to any other Indebtedness of ACEP 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 4.09, in the event that an incurrence item of Indebtedness by a Subsidiary meets the criteria of more than one of the Company;
categories of Permitted Debt described in clauses (x1) through (15) above, ACEP will be permitted to classify such item of Indebtedness incurred by on the Company or any date of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligationsincurrence, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring later reclassify all or a portion of such businessitem of Indebtedness, assets in any manner that complies with this Section 4.09. 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 Subsidiary change in accounting principles, and the payment of dividends on preferred stock or Disqualified Stock in the form of additional shares of the Company 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 covenant. For purposes of determining compliance with any U.S. dollar- denominated restriction on the purpose incurrence of financing such acquisitionIndebtedness, the U.S. dollar- equivalent principal amount of Indebtedness denominated in a principal amount not to exceed 25% of foreign currency shall be utilized, calculated based on the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at relevant currency exchange rate in effect on the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with date such disposition; and
(xi) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Personwas incurred. Notwithstanding any other provision of this covenant, a Guarantee the maximum amount of Indebtedness permitted that ACEP or any Subsidiary of ACEP may incur pursuant to this Section 4.09 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 terms assets of this Indenture the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the time such date of determination; and
(B) the amount of the Indebtedness was incurred shall not constitute a separate incurrence of Indebtednessthe other Person.
Appears in 1 contract
Sources: Indenture (American Casino & Entertainment Properties LLC)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall not, and shall not permit any of its Subsidiaries and Unrestricted 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 Indebtedness) Debt), and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness (including Acquired IndebtednessDebt) or issue shares of Disqualified Stock Stock, and the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and or issue preferred stock if: (i) stock, in each case, if the 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 such Disqualified Stock is issued applicable Financial Covenant Period would have been at least 2 2.0 to 1, 1 determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, incurred or the Disqualified Stock or preferred stock had been issued, as the case may be, at the beginning of such four-quarter period; and that Financial Covenant Period.
(iib) no Default or Event The first paragraph of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions Section 4.09 shall not apply to:prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):
(i1) the incurrence by the Company and any of Senior Revolving Debt its Restricted Subsidiaries of additional Indebtedness and reimbursement obligations in respect of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (1) (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries outstanding face amount thereof that are Subsidiary Guarantors with respect theretohas not been reimbursed) not to exceed an $1.3 billion (provided that such amount equal shall be reduced to $25,000,000the extent of any reduction or elimination of any commitment under any Credit Facility resulting from or relating to the formation of any Receivables Subsidiary or the completion of any Qualified Receivables Transaction) less the aggregate amount of all Net Proceeds of Assets Sales applied by the Company or any of its Restricted Subsidiaries since the date of this Indenture to repay any Indebtedness under a Credit Facility and effect a corresponding commitment reduction thereunder pursuant to Section 4.10 hereof;
(ii2) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii3) the incurrence by the Company and the Guarantors of Indebtedness represented by the Notes to be issued on the date of this Indenture and the related Subsidiary Guarantees, the Euro Notes to be issued on the date of the Euro Indenture and the related subsidiary guarantees, the Exchange Notes and the related Subsidiary Guarantees to be issued as contemplated by the Subsidiaries of Indebtedness represented Registration Rights Agreement and the Euro Exchange Notes and the related subsidiary guarantees to be issued as contemplated by the Subsidiary GuaranteesEuro Registration Rights Agreement;
(iv4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or Purchase Money Obligationspurchase money obligations, in each case case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property property, plant or equipment used in the business of the Company or such that Restricted Subsidiary, in an aggregate principal amount amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (4), not to exceed $10,000,000 25.0 million at any time outstanding;
(v5) 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 extend, refinance, renew, replace, defease or refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurredincurred under the first paragraph of this Section 4.09 or clauses (2), (3), (4), (5), (14), (15) or (17) of this Section 4.09(b);
(vi6) the incurrence by the Company or any of its Wholly Owned Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Restricted Subsidiaries; provided, however, that
(a) if the Company or any Guarantor is the obligor on the Indebtedness, that Indebtedness (unless pledged as security for Obligations under the Credit Facilities) must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of the Company, or the Subsidiary Guarantees, in the case of a Guarantor; and
(i) any subsequent issuance or transfer of Equity Interests that results in any such that Indebtedness being held by a Person other than the Company or a Wholly Owned Restricted Subsidiary of the Company (other than as security for Obligations under the Credit Facilities) and (ii) any sale or other transfer (other than as security for Obligations under the Credit Facilities) of any such that Indebtedness by the Company or a Restricted Subsidiary of the Company to a Person that is not either the Company or a Wholly Owned Restricted Subsidiary shall of the Company, will be deemed, in each case, to constitute an incurrence incurrence, as of such the date of issuance, transfer or sale, as the case may be, of that Indebtedness by the Company or such that Restricted Subsidiary, as the case may be, that is not permitted by this clause (6);
(vii7) the incurrence by the Company or any of its Restricted Subsidiaries that are Subsidiary Guarantors of Hedging Obligations that are incurred entered into the ordinary course of business to hedge or mitigate risks to which the Company or any of its Restricted Subsidiaries is exposed in the conduct of its business or the management of its liabilities and not for the purpose of fixing or hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by this Indenture to be incurredspeculative purposes;
(viii) 8) the incurrence guarantee by the Company or any of its Subsidiaries that are Subsidiary the Guarantors of Indebtedness (in addition of the Company or a Restricted Subsidiary of the Company that was permitted to Indebtedness permitted be incurred by any other clause another provision of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000Section 4.09;
(ix9) 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 in the form of additional shares of the same class of Disqualified Stock shall not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09; provided, in each such case, to the extent relevant to any calculation under this Indenture, that the amount thereof is included in Fixed Charges of the Company as accrued;
(10) the incurrence by the Company's Unrestricted Foreign Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(x) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion Indebtedness in the ordinary course of such business, assets of a Subsidiary of the Company business for the purpose of financing such acquisition, working capital purposes in a principal an amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued $100.0 million at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; andtime outstanding;
(xi11) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse to the Company or to any other Subsidiary of the Company or their assets (other than such that Receivables Subsidiary and its assets)assets and, as to the Company or any Subsidiary of the Company, other than pursuant to representations, warranties, covenants and indemnities customary for those transactions) and is not guaranteed by any such Person. Notwithstanding the Company or any other provision Subsidiary of the Company (other than that Receivables Subsidiary);
(12) the incurrence by the Company and any Restricted Subsidiary of statutory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature incurred in the ordinary course of business of the Company or that Restricted Subsidiary, as the case may be;
(13) Indebtedness incurred by the Company or any of its Restricted Subsidiaries consisting of advances received in the ordinary course of business for cash management purposes from any Unrestricted Subsidiary;
(14) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issuable upon the conversion or exchange of shares of Disqualified Stock issued in accordance with the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof;
(15) start-up working capital advances from Unilever to the Company or any of its Subsidiaries pursuant to the Sales Agency Agreement;
(16) 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) drawn against insufficient funds in the ordinary course of business; provided, however, that the Indebtedness is extinguished within five business days of incurrence; and
(17) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or, with respect to Indebtedness issued at a discount, the original principal amount at the date of incurrence) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this covenantclause (17), a Guarantee not to exceed $10.0 million. For purposes of determining compliance with this Section 4.09:
(1) 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 (17) above, or is entitled to be incurred pursuant to Section 4.09(a) hereof, the Company shall be permitted to (a) classify that item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.09 and (b) after the incurrence of any Permitted Indebtedness pursuant to the provisions described in this Section 4.09(b), reclassify such Indebtedness to any other type of Permitted Indebtedness permitted by the terms of provisions described in this Indenture Section 4.09(b), provided, that the Indebtedness, at the time of reclassification, could have been incurred as such other type of Permitted Indebtedness;
(2) Indebtedness under Credit Facilities outstanding on the date on which Notes are first issued and authenticated under this Indenture will be deemed to have been incurred on that date in reliance on the exception provided by clause (1) of the definition of Permitted Debt; and
(3) for purposes of determining compliance with any dollar-denominated restriction on the incurrence of Indebtedness denominated in a foreign currency, the dollar-equivalent principal amount of that Indebtedness incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was is incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that if that Indebtedness is incurred shall to refinance other Indebtedness denominated in a foreign currency, and that 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 that refinancing, the U.S. dollar-denominated restriction will be deemed not constitute to have been exceeded so long as the principal amount of that refinancing Indebtedness does not exceed the principal amount of that Indebtedness being refinanced. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a separate incurrence different currency from the Indebtedness being refinanced, will be calculated based on the currency exchange rate applicable to the currencies in which that refinancing Indebtedness is denominated that is in effect on the date of Indebtednessthe refinancing.
Appears in 1 contract
Sources: Indenture (Johnson Polymer Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company BV Borrower shall not, and shall not permit any of its Subsidiaries and Unrestricted 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, "collectively “incur"”) any Indebtedness (including Acquired IndebtednessDebt) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted Restricted Subsidiaries to issue any shares of preferred stockPreferred Stock; provided, however, that the Company BV Borrower and any Guarantor may incur Indebtedness (including Acquired IndebtednessDebt) or and any Guarantor may issue shares of Disqualified Preferred Stock and the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) if the Fixed Charge Coverage Ratio of the BV Borrower for the Company's its most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Preferred Stock is issued would have been at least 2 2.0 to 1, 1 determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, incurred or the Disqualified Preferred Stock had been issued, as the case may be, and the application of proceeds therefrom had occurred at the beginning of such four-quarter period; and .
(iib) no Default or Event The provisions of Default shall have occurred and be continuing or would occur as a consequence thereof; providedSection 7.03(a) will not prohibit the incurrence of any of the following (collectively, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall not apply to:“Permitted Debt”):
(i) the incurrence by the Company BV Borrower and any Restricted Subsidiary of Senior Revolving Debt Indebtedness under the Credit Agreement together with the incurrence by the BV Borrower and reimbursement obligations in respect any Restricted Subsidiaries of the guarantees thereunder and the issuance and creation of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding bankers’ acceptances thereunder (with letters of credit obligations and bankers’ acceptances being deemed to have a principal amount equal to the maximum potential liability face amount thereof), up to an aggregate principal amount, of $1,800,000,000 outstanding at any one time, less the Company and its Subsidiaries that are Subsidiary Guarantors amount of (x) all mandatory principal payments (with respect theretoto revolving borrowings and letters of credit, only to the extent revolving commitments are correspondingly reduced) not to exceed an amount equal to $25,000,000actually made by any obligor thereunder in respect of Indebtedness thereunder with Net Proceeds from Asset Sales; and (y) all principal payments actually made by any obligor thereunder in respect of Indebtedness thereunder with the Net Proceeds from Designated Asset Sales;
(ii) the incurrence by the Company BV Borrower and its Subsidiaries the Guarantors of Indebtedness represented by the Existing IndebtednessSenior Notes, including the Senior Subordinated NotesNotes and the Loans (including, in each case, any Guarantee thereof) issued on or prior to the Effective Date;
(iii) the incurrence by the Company of Existing Indebtedness represented by the Notes and by the Subsidiaries of (other than Indebtedness represented by the Subsidiary Guaranteesdescribed in Section 7.03(b)(i), (ii) or (iii));
(iv) Indebtedness (including Capitalized Lease Obligations) incurred by the BV Borrower or any Restricted Subsidiary to finance the purchase, lease 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) in an aggregate principal amount that, when aggregated with the principal amount of all other Indebtedness then outstanding and incurred pursuant to this clause (iv), does not exceed the greater of (x) $50,000,000 and (y) an amount equal to 2.0% of Consolidated Total Assets as of the end of the BV Borrower’s most recently concluded fiscal quarter for which a balance sheet is available;
(v) Indebtedness incurred by the BV Borrower or any Restricted Subsidiary constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including without limitation letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance 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 by of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;
(vi) Indebtedness arising from agreements of the Company BV Borrower or any a Restricted Subsidiary providing for indemnification, adjustment of its Subsidiaries of Indebtedness represented by Capital Lease Obligationspurchase price, mortgage financings earn-outs or Purchase Money Obligationssimilar obligations, in each case case, incurred or assumed in connection with the disposition or acquisition of any business, assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $10,000,000 at any time outstanding;
(v) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, Indebtedness that was permitted by this Indenture to be incurred;
(vi) the incurrence by the Company or any of its Wholly Owned Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Subsidiariesacquisition; provided, however, that (iA) such Indebtedness is not reflected on the balance sheet of the BV Borrower or any Restricted Subsidiary (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (A)) and (B) the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including noncash proceeds (the fair market value of such noncash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the BV Borrower and any Restricted Subsidiary in connection with such disposition;
(vii) Indebtedness of the BV Borrower owed to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owed to and held by the BV Borrower or any other Restricted Subsidiary; provided, however, that (A) any subsequent issuance or transfer of Equity Interests any Capital Stock or any other event that results in any such Indebtedness being held by Restricted Subsidiary ceasing to be a Person other than a Wholly Owned Restricted Subsidiary and (ii) or any sale or other subsequent transfer of any such Indebtedness (except to a Person that is not either the Company BV Borrower or a Wholly Owned Subsidiary Restricted Subsidiary) shall be deemed, in each case, to constitute an the incurrence of such Indebtedness by the Company issuer thereof and (B) if the BV Borrower or a Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly subordinated in right of payment to all obligations of the BV Borrower or such Guarantor with respect to the Loans;
(viii) shares of Preferred Stock of a Restricted Subsidiary issued to the BV Borrower or a Restricted Subsidiary; provided that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such shares of Preferred Stock (except to the BV Borrower or a Restricted Subsidiary) shall be deemed in each case to be an issuance of such shares of Preferred Stock;
(ix) Hedging Obligations of the BV Borrower or any Restricted Subsidiary (excluding Hedging Obligations entered into for speculative purposes);
(x) obligations in respect of performance and surety bonds, appeal bonds and other similar types of bonds and performance and completion guarantees provided by the BV Borrower or any Restricted Subsidiary or obligations in respect of letters of credit related thereto, in each case in the ordinary course of business or consistent with past practice;
(xi) Indebtedness of the BV Borrower or any Guarantor or Preferred Stock of any Guarantor not otherwise permitted hereunder in an aggregate principal amount or liquidation preference which, when aggregated with the principal amount and liquidation preference of all other Indebtedness and Preferred Stock then outstanding and incurred pursuant to this clause (xi), does not at any one time outstanding exceed $150,000,000;
(A) any guarantee by the BV Borrower or a Guarantor of Indebtedness or other obligations of any Restricted Subsidiary so long as the incurrence of such Indebtedness incurred by such Restricted Subsidiary is permitted under the terms of this Agreement; provided, that if such Indebtedness is by its express terms subordinated in right of payment to the Loans or the Guarantee of such Restricted Subsidiary, any such guarantee of the BV Borrower or such Guarantor with respect to such Indebtedness shall be subordinated in right of payment to such Loans and such Guarantor’s Guarantee with respect to such Loans substantially to the same extent as such Indebtedness is subordinated to such Loans or the Guarantee of such Restricted Subsidiary, as applicable, (B) any guarantee by a Restricted Subsidiary that is not a Guarantor of Indebtedness of another Restricted Subsidiary that is not a Guarantor incurred in accordance with the case may beterms of this Agreement, and (C) any guarantee by a Guarantor of Indebtedness of the BV Borrower incurred in accordance with the terms of this Agreement;
(viixiii) the incurrence by the Company BV Borrower or any Restricted Subsidiary of Indebtedness or Preferred Stock that serves to refund or refinance any Indebtedness incurred as permitted under Section 7.03(a) and clauses (ii), (iii) and (iv) of this Section 7.03(b), this clause (xiii) and clauses (xiv) and (xxi) of this Section 7.03(b) or any Indebtedness issued to so refund or refinance such Indebtedness including additional Indebtedness incurred to pay premiums and fees in connection therewith (the “Refinancing Indebtedness”) prior to its respective maturity; provided, however, that such Refinancing Indebtedness (A) has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is incurred which is not less than the remaining Weighted Average Life to Maturity of the Indebtedness being refunded or refinanced, (B) to the extent such Refinancing Indebtedness refinances Indebtedness subordinated or pari passu to the Loans or the related Guarantees, such Refinancing Indebtedness is subordinated or pari passu to such Loans or such Guarantees at least to the same extent as the Indebtedness being refinanced or refunded, (C) shall not include (x) Indebtedness or Preferred Stock of a Subsidiary that is not a Guarantor that refinances Indebtedness or Preferred Stock of the BV Borrower or a Guarantor or (y) Indebtedness or Preferred Stock of the BV Borrower or a Restricted Subsidiary that refinances Indebtedness or Preferred Stock of an Unrestricted Subsidiary, (D) shall not be in a principal amount in excess of the principal amount of, premium, if any, accrued interest on, and related fees and expenses of, the Indebtedness being refunded or refinanced and (E) shall not have a Stated Maturity prior to the earlier of (x) the Stated Maturity of the Indebtedness being refunded or refinanced and (y) the Stated Maturity of any Notes then outstanding; and provided further that in subclauses (A), (B) and (E) of this clause (xiii) will not apply to any refunding or refinancing of any Senior Debt;
(xiv) Indebtedness or Preferred Stock of a Person incurred and outstanding on or prior to the date on which such Person was acquired by the BV Borrower or any Restricted Subsidiary or merged into the BV Borrower or a Restricted Subsidiary in accordance with the terms of this Agreement; provided that such Indebtedness or Preferred Stock is not incurred in connection with or in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate, such acquisition or merger; and provided further, that after giving effect to such incurrence of Indebtedness either (A) the BV Borrower would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth Section 7.03(a) or (B) such Fixed Charge Coverage Ratio would be greater than immediately prior to such acquisition;
(xv) Indebtedness arising from the honoring by a bank or financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, that such Indebtedness is extinguished within five Business Days of its incurrence;
(xvi) Indebtedness of the BV Borrower or any of its Restricted Subsidiaries that are Subsidiary Guarantors supported by a letter of Hedging Obligations that are incurred for credit issued pursuant to the purpose Credit Agreement in a principal amount not in excess of fixing or hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by this Indenture to be incurredthe stated amount of such letter of credit;
(viiixvii) Indebtedness incurred by a Securitization Subsidiary in a Qualified Securitization Financing that is not recourse to the incurrence by the Company BV Borrower or any of its Subsidiaries Restricted Subsidiaries, other than a Securitization Subsidiary (except for Standard Securitization Undertakings);
(xviii) Indebtedness incurred by a Restricted Subsidiary, provided, however, that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an the aggregate principal amount at any time of Indebtedness incurred under this clause (xviii) which, when aggregated with the principal amount of all other Indebtedness then outstanding and incurred pursuant to this clause (xviii), does not to exceed the sum greater of $5,000,00050,000,000 and 1.0% of Consolidated Total Assets as of the end of the BV Borrower’s most recently concluded fiscal quarter for which a balance sheet is available;
(ixxix) Indebtedness consisting of promissory notes issued by the BV Borrower or any Guarantor to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the BV Borrower or any of its direct or indirect parent corporations permitted by Section 7.01;
(xx) Contribution Indebtedness;
(xxi) Indebtedness of the BV Borrower 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 BV Borrower or such Guarantor of property used or useful in a Permitted Business (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, that the Fixed Charge Coverage Ratio of the BV Borrower for its most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such Indebtedness is incurred, determined on a pro forma basis as if such Indebtedness had been incurred and the application of proceeds therefrom had occurred at the beginning of such four- quarter period, (A) would have been at least 1.5 to 1 for any incurrence of Indebtedness on or prior to December 31, 2007, and would have been at least 1.75 to 1 for any incurrence of Indebtedness thereafter, and (B) would have been greater than such Fixed Charge Coverage Ratio immediately prior to such acquisition or merger; and
(xxii) Indebtedness of the BV Borrower and any Restricted Subsidiary to the extent the proceeds of such Indebtedness are deposited and used to defease the Senior Subordinated Notes as described under Article 8 and Article 12 of the Senior Subordinated Notes Indenture.
(c) For purposes of determining compliance with this Section 7.03, 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 (i) through (xxii) above, or is entitled to be incurred pursuant to Section 7.03(a), the BV Borrower will be permitted to classify and later reclassify such item of Indebtedness in any manner that complies with this Section 7.03, and such item of Indebtedness will be treated as having been incurred pursuant to only one of such categories. Accrual of interest, the accretion of accreted value and the payment of interest in the form of additional Indebtedness will not be deemed to be an incurrence of Indebtedness for purposes of this covenant. Notwithstanding the foregoing, Indebtedness under the Credit Agreement outstanding on the Effective Date will be deemed to have been incurred on such date in reliance on the exception provided by clause (i) of the definition of Permitted. Additionally, all or any portion of any item of Indebtedness may later be reclassified as having been incurred pursuant to the first paragraph of this covenant or under any category of Permitted Debt described in clauses (i) through (xxii) above so long as such Indebtedness is permitted to be incurred pursuant to such provision at the time of reclassification.
(d) For purposes of determining compliance with any Dollar restriction on the incurrence by of Indebtedness where the Company's Unrestricted Subsidiaries Indebtedness incurred is denominated in a different currency, the amount of Non-Recourse Debt, such Indebtedness will be the US Dollar Equivalent determined on the date of the incurrence of such Indebtedness; provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(x) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, denominated in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; and
(xi) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtedness.different currenc
Appears in 1 contract
Sources: Senior Subordinated Term Loan Agreement (Sensata Technologies B.V.)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries and Unrestricted 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 IndebtednessDebt) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries to issue any shares of preferred stock; provided, however, provided that the Company and the Guarantors may incur Indebtedness (including Acquired IndebtednessDebt) or issue shares of Disqualified Stock and or preferred stock if the Consolidated Leverage Ratio of the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) the 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 such Disqualified Stock is issued would have been at least 2 to 1, determined calculated on a pro forma basis (including a pro forma application after giving effect to the incurrence or issuance of the net proceeds therefrom), as if the additional Indebtedness had been incurred, to be incurred or the Disqualified Stock had been or preferred stock to be issued, as the case may be, at the beginning of such four-quarter period; and (ii) no Default or Event of Default shall would have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant been less than 2.0 to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph1. The foregoing provisions of the first paragraph of this covenant shall not apply to:to the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):
(i) the existence of Bank Lines and the Guarantees thereof by the Guarantors and the incurrence by the Company and/or any of Senior Revolving Debt and reimbursement obligations in respect the Guarantors of letters revolving credit Indebtedness pursuant to one or more Bank Lines the proceeds of credit (and Guarantees thereof by Subsidiaries which are applied to purchase or originate Receivables; provided that are Subsidiary Guarantors) in an the aggregate principal amount at of all revolving credit Indebtedness outstanding under all Bank Lines after giving effect to such incurrence, including all Permitted Refinancing Indebtedness incurred to refund, refinance, defease, renew or replace any time outstanding Indebtedness incurred pursuant to this clause (i) and with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder, does not at any time exceed the amount of the Borrowing Base (any such outstanding Indebtedness that are Subsidiary Guarantors with respect theretoexceeds the amount of the Borrowing Base as of the close of any Business Day shall cease to be Permitted Debt pursuant to this clause (i) as of the close of business on the third Business Day thereafter and shall be deemed to be an incurrence of such Indebtedness that is not to exceed an amount equal to $25,000,000permitted by this clause (i) by the Company or such Guarantor, as applicable, as of such third Business Day);
(ii) the existence of Credit Facilities, regardless of amount, and the incurrence by any Credit Facility Trust of Permitted Credit Facility Debt in an aggregate principal amount at any time outstanding (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Credit Facility Trust thereunder) not to exceed 100% of the aggregate principal amount (exclusive of Acquisition Fees included therein) of all Eligible Receivables owned by the Credit Facility Trust (or such Credit Facilities in the case of Permitted Credit Facility Debt in the form of repurchase agreements) at such time;
(iii) the existence of Residual Funding Facilities and the Guarantees thereof by the Guarantors and the incurrence by the Company and/or any of the Guarantors of Indebtedness pursuant to one or more Residual Funding Facilities; provided that the aggregate principal amount of all Indebtedness outstanding under all Residual Funding Facilities after giving effect to such incurrence, permitted under this clause (iii) shall not exceed $125 million; for purposes of determining the principal amount of Residual Funding Facilities and the Guarantees thereof, letters of credit shall be deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notesthereunder;
(iiiiv) the incurrence by the Securitization Trusts of Permitted Securitization Debt in an aggregate principal amount at any time outstanding (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Securitization Trusts thereunder) not to exceed 100% of the aggregate principal amount (exclusive of Acquisition Fees included therein) of the Receivables owned by Securitization Trusts;
(v) the incurrence by the Company of Indebtedness represented by the 2011 Notes, the 2013 Notes, the 2023 Notes and the Notes and the incurrence by the Subsidiaries Guarantors of Indebtedness represented by the 2011 Guarantees, the 2013 Guarantees, the 2023 Guarantees and the Subsidiary Guarantees;
(ivvi) obligations of the Company and its Restricted Subsidiaries and the Securitization Trusts under Credit Enhancement Agreements;
(vii) the incurrence by the Company or any of its 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 used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $10,000,000 at any time outstanding;
(v) 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 extendrefund, refinance, renewdefease, replace, defease renew or refund, replace any Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred;
(vi) the incurrence by the Company or any of its Wholly Owned Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Subsidiaries; provided, however, that (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than a Wholly Owned Subsidiary and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(vii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors 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 this Indenture to be incurred;
(viii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000;
(ix) the incurrence by the Company's Unrestricted Restricted Subsidiaries of Non-Recourse Debtintercompany Indebtedness between or among the Company and any of the Guarantors; provided that (i) if the Company is the obligor on such Indebtedness, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(x) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; and
(xi) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse expressly subordinated to the Company or prior payment in full in cash of all Obligations with respect to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtedness.Notes and
Appears in 1 contract
Sources: Indenture (Americredit Corp)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries and Unrestricted Subsidiaries to, directly or indirectly, create(a) Create, incur, issue, assume, enter into a guarantee of or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, "“incur"”) any Indebtedness (including Acquired Indebtedness) Debt), and the Company Holdings shall not issue any Disqualified Stock and shall not permit any of its the Restricted Subsidiaries and Unrestricted Subsidiaries to to, without the prior written consent of the Required Lenders, issue any shares of preferred stock; providedstock or preferred interests.
(b) Notwithstanding anything to contrary herein, howeverSection 7.4(a) above will not prohibit the incurrence of any Permitted Debt.
(c) For the purposes of determining compliance with this Section 7.4, in the event that the Company may incur an item of proposed Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and meets the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) the 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 such Disqualified Stock is issued would have been at least 2 to 1, determined on a pro forma basis (including a pro forma application criteria of more than one of the net proceeds therefrom), as if categories of Permitted Debt described in clauses (1) through (23) of the additional Indebtedness had been incurred, definition of “Permitted Debt,” or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may is entitled to be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall not apply to:
(i) the incurrence by the Company of Senior Revolving Debt and reimbursement obligations in respect of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries that are Subsidiary Guarantors with respect thereto) not to exceed an amount equal to $25,000,000;
(ii) the incurrence by the Company and its Subsidiaries of the Existing IndebtednessSection 7.4(a), including the Senior Subordinated Notes;
(iii) the incurrence by the Company of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary Guarantees;
(iv) the incurrence by the Company or any of its 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 used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $10,000,000 at any time outstanding;
(v) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, Indebtedness that was permitted by this Indenture to be incurred;
(vi) the incurrence by the Company or any of its Wholly Owned Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Subsidiaries; provided, however, that (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than a Wholly Owned Subsidiary and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary Borrowers shall be deemed, in each case, permitted to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(vii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors 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 this Indenture to be incurred;
(viii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(x) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring classify all or a portion of such businessitem of Indebtedness or Disqualified Stock on the date of its incurrence, assets or later reclassify all or a portion of a Subsidiary such item of Indebtedness or Disqualified Stock (based on circumstances existing on the date of such reclassification), in any manner that complies with this Section 7.4; provided that (x) all Indebtedness outstanding under the Second Lien Notes on the Effective Date will be treated as incurred under clause (1) of the Company for definition of “Permitted Debt” and (y) all Indebtedness represented by Existing Notes and outstanding on the purpose Effective Date will be treated as incurred under clause (2) of financing such acquisitionthe definition of “Permitted Debt” and, in each case, may not be reclassified.
(d) The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 7.4. For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; and
(xi) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 denominated in a Qualified Receivables Transaction that is without recourse to foreign currency shall be utilized, calculated based on the Company or to any Subsidiary of relevant currency exchange rate in effect on the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time date such Indebtedness was incurred or first committed, in the case of revolving Indebtedness. Notwithstanding anything to the contrary in this Section 7.4, the maximum amount of Indebtedness that Holdings or any Restricted Subsidiary may incur pursuant to this Section 7.4 shall not constitute be deemed to be exceeded solely as a separate incurrence result of fluctuations in exchange rates or currency values.
(e) The amount of any Indebtedness outstanding as of any date will be (i) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount; (ii) the principal amount of the Indebtedness, in the case of any other Indebtedness; and (iii) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of (a) the Fair Market Value of such assets at the date of determination and (b) the amount of the Indebtedness of the other Person.
Appears in 1 contract
Sources: Loan and Security Agreement (Senseonics Holdings, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company Holdings shall not, and shall not permit any of its Subsidiaries and Unrestricted 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 IndebtednessDebt) and the Company shall Holdings will not issue any Disqualified Stock and shall will not permit any of its Subsidiaries and Unrestricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company Holdings may incur Indebtedness (including Acquired IndebtednessDebt) or issue shares of Disqualified Stock and the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) if the Fixed Charge Coverage Ratio for the Company's Holdings' most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 2 2.0 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall of the first paragraph of this covenant will not apply to:to the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(i) the incurrence by the Company Restricted Subsidiaries of Senior Revolving Debt Holdings of revolving indebtedness and reimbursement obligations in respect of letters of credit (and Guarantees thereof by Subsidiaries pursuant to New Credit Facility; provided that are Subsidiary Guarantors) in an the aggregate principal amount at any time outstanding of all revolving Indebtedness (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries that are Subsidiary Guarantors with respect theretoof Holdings thereunder) outstanding under the New Credit Facility after giving effect to such incurrence does not exceed $40.0 million less the aggregate amount of all Net Proceeds of Asset Sales applied to exceed an amount equal permanently repay revolving credit Indebtedness under the New Credit Facility (to $25,000,000the extent accompanied by a corresponding commitment reduction) pursuant to Section 4.10 hereof;
(ii) the incurrence by the Company Holdings and its Restricted Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) the incurrence by the Company Holdings and its Restricted Subsidiaries of Indebtedness represented by the Notes offered in the Offering, the Senior Subordinated Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary Senior Subordinated Note Guarantees;
(iv) the incurrence by the Company Holdings or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or Purchase Money Obligationspurchase 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 used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $10,000,000 at any time outstanding;
(v) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, Indebtedness that was permitted by this Indenture to be incurred;
(vi) the incurrence by the Company or any of its Wholly Owned Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Subsidiaries; provided, however, that (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than a Wholly Owned Subsidiary and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(vii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors 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 this Indenture to be incurred;
(viii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(x) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; and
(xi) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtedness.purchase
Appears in 1 contract
Sources: Indenture (Ap Holdings Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company Borrower shall not, and shall not permit any of its Subsidiaries and Unrestricted 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 IndebtednessDebt) and the Company Borrower shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries and Unrestricted Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company Borrower may incur Indebtedness (including Acquired IndebtednessDebt) or issue shares of Disqualified Stock and the CompanyBorrower's Restricted Subsidiaries that are Subsidiary Guarantors may incur Eligible Indebtedness and issue preferred stock if: , in each case, (i) no Default shall have occurred and be continuing or would occur as a consequence thereof and (ii) the Fixed Charge Coverage Borrower's Debt to Adjusted Consolidated Cash Flow Ratio for at the Company's time of incurrence of such Indebtedness or the issuance of such Disqualified Stock, after giving pro forma effect to such incurrence or issuance as of such date and to the use of proceeds therefrom as if the same had occurred at the beginning of the most recently ended four full fiscal quarters quarter period of the Borrower for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued available, would have been at least 2 no greater than 6.5 to 1, determined on a pro forma basis (including a pro forma application . The provisions of the net proceeds therefrom)first paragraph of this covenant shall not apply to the incurrence of any of the following items of Indebtedness (collectively, as "Permitted Debt") if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall not apply to:
(i) the incurrence by the Company Borrower or any of Senior Revolving Debt and reimbursement obligations in respect its Restricted Subsidiaries of letters of credit Indebtedness (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantorsincluding Indebtedness under Credit Facilities) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company Borrower and its Restricted Subsidiaries that are Subsidiary Guarantors with respect theretothereunder) at any one time outstanding not to exceed an the greater of (x) $100.0 million less the aggregate amount equal of all Net Proceeds of Assets Sales applied to $25,000,000repay Indebtedness under a Credit Facility since November 25, 1997 and (y) 70% of the Eligible Receivables that are outstanding as of such date of incurrence;
(ii) the incurrence by the Company Borrower and its Restricted Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) the incurrence by the Company Borrower of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary GuaranteesSenior Discount Notes;
(iv) the incurrence by the Company Borrower or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or Purchase Money Obligationspurchase 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 property, plant or equipment used in the business of the Company Borrower or such Restricted Subsidiary, in an aggregate principal amount amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other indebtedness incurred pursuant to this clause (iv), not to exceed $10,000,000 5.0 million at any time outstanding;
(v) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, Indebtedness that was permitted by this Indenture to be incurred;
(vi) the incurrence by the Company or any of its Wholly Owned Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Subsidiaries; provided, however, that (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than a Wholly Owned Subsidiary and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(vii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors 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 this Indenture to be incurred;
(viii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(x) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; and
(xi) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtedness.
Appears in 1 contract
Sources: Term Loan Agreement (Crown Castle International Corp)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall will not, and shall will not permit any of its Subsidiaries and Unrestricted Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee permit, suffer to exist or otherwise be or become directly or indirectly liableliable with respect to, contingently or otherwise, with respect to otherwise (collectively, "“incur") ”), any Indebtedness (including Acquired Indebtedness) and the Company shall not issue any Disqualified Stock and shall will not permit any of its Subsidiaries and Unrestricted Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company and any Guarantor may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) the 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 such Disqualified Stock is issued would have been at least 2 to 1, determined on a pro forma basis (including a pro forma application any of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may befollowing items of Indebtedness:
(a) Expansion Debt if, at the beginning time of incurrence of such four-quarter period; Expansion Debt, the following conditions shall have been satisfied:
(1) each Debt Service Reserve Account and Additional Debt Service Reserve Account is funded to its then required funding level;
(ii2) the final maturity date of such Expansion Debt shall not be earlier than the latest Guaranteed Substantial Completion Date set forth in the EPC Contract for that part of the Project associated with the applicable Train or Trains (the “Project Phase”);
(3) in the event any Train, Facility LNG Sale and Purchase Agreement or EPC Contract related to the Train or Trains being financed with the proceeds of such Expansion Debt (such Train, Facility LNG Sale and Purchase Agreement and EPC Contract, the “Applicable Expansion Debt Assets”) are not part of the Collateral, the Company shall, and shall cause each Restricted Subsidiary with an interest in Applicable Expansion Debt Assets to (in each case, prior to the incurrence of such Expansion Debt), execute and deliver to the Common Security Trustee, such additional agreements and supplements to the Security Documents as are necessary or advisable in order to subject such Applicable Expansion Debt Assets to the Lien of the Common Security Trustee thereunder (including financing statements and other documents reasonably requested by the Common Security Trustee in order to perfect and protect the Common Security Trustee’s Lien in such Applicable Expansion Debt Assets);
(4) the Company shall have delivered to the Trustee a certificate of an Authorized Officer of the Company certifying that:
(A) all necessary approvals and permits to be issued by FERC and DOE/FE with respect to the applicable Train or Trains and with respect to the applicable stage of construction for such Train or Trains have been issued;
(B) the Company has used reasonable commercial efforts to obtain insurance with respect to the applicable Train or Trains that would satisfy the requirements of Section 4.18.
(C) no Default or Event of Default has occurred and is continuing;
(D) in connection with Expansion Debt Related to Train Three and Train Four, the Train Three and Train Four EPC Contract and the Train Three and Train Four LNG Sales Agreements are in effect and not in material payment default or a breach that has resulted in a material non-payment by the counterparty to such Facility LNG Sale and Purchase Agreement; and any modification to the Train Three and Train Four LNG Sales Agreements since the Notes Issue Date would not reasonably be expected to result in a Material Adverse Effect;
(E) in connection with Expansion Debt Related to Train Five and/or Train Six, the associated EPC Contract is in effect and not in material default; and the Train Five LNG Sales Agreement and any Facility LNG Sale and Purchase Agreement relating to Train Six, as applicable, are in effect and not in material payment default or a breach that has resulted in a material non-payment by the counterparty to such Facility LNG Sale and Purchase Agreement;
(F) the amount of all Senior Debt (excluding Working Capital Debt and excluding Indebtedness or Guarantees incurred under clauses (f), (g), (h), (i), (j), (k), (l), (m), (o), (p) and (q) of this Section 4.08) outstanding after giving effect to the incurrence of the Expansion Debt, is capable of being amortized to a zero balance by the termination date of the last to terminate of the Applicable Facility LNG Sale and Purchase Agreements such that the Projected Debt Service Coverage Ratio after the last Guaranteed Substantial Completion Date with respect to any Trains then in construction or with respect to which the Expansion Debt is being incurred through the terms of such Applicable Facility LNG Sale and Purchase Agreements would be at least 1.5 to 1.0; provided that the Projected Debt Service Coverage Ratio shall be calculated (i) solely with respect to Contracted Cash Flow; and (ii) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Expansion Debt;
(G) the Independent Engineer has delivered a certificate to the Company certifying that the Expansion Debt to be incurred, together with any equity contribution amount required by such Expansion Debt and all Contracted Cash Flows, shall be sufficient to fund the entirety of the Project Costs of the Project Phase through the Guaranteed Substantial Completion Date thereof, plus reasonable contingencies;
(H) the Independent Engineer has prepared a report, addressed and delivered to the Company, addressing the technical and economic feasibility of the Project Phase, the reasonableness of the capital cost, budget and construction schedule of the Project Phase, the reasonableness and the consistency of the funding schedule for the Project Phase, describing the construction status of, and the expected impact of the Project Phase on any phase of the Project relating to Trains with a lower Train Number than the Project Phase, the reasonableness of the EPC Contract and the Facility LNG Sale and Purchase Agreements relating to the Project Phase, and confirming that sufficient funds are available to reach Substantial Completion with respect to EPC Contracts relating to Trains with a lower Train Number than the Project Phase (the “IE Phase Report”); and the IE Phase Report does not disclose facts or conclusions that constitute or would reasonably be expected to result in a Material Adverse Effect; and
(I) at any time when there is no Secured Bank Debt outstanding, the Company shall have occurred received letters from any two Acceptable Rating Agencies (or if only one Acceptable Rating Agency is then rating the Notes, the Company shall have received a letter from that Acceptable Rating Agency) to the effect that the Acceptable Rating Agency has considered the contemplated incurrence, and be continuing that, if the contemplated incurrence is consummated, such Acceptable Rating Agency would reaffirm the then current rating of the Notes as of the date of such incurrence; provided that with respect to Expansion Debt relating to Train Five or would occur as a consequence thereof; providedTrain Six incurred at any time that there is Secured Bank Debt outstanding, the amount of Expansion Debt that no Guarantee may be incurred pursuant to this paragraph unless shall be limited such that the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall not apply to:ratio of
(i) the incurrence present value of (x) the projected cash flows to be received by the Company of Senior Revolving Debt pursuant to Applicable Facility LNG Sale and reimbursement obligations in respect of letters of credit Purchase Agreements related to Train One, Train Two, Train Three, and Train Four, minus (and Guarantees thereof y) the projected expenses that could reasonably be expected to be incurred by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability Company throughout the term of the Company Applicable Facility LNG Sale and its Subsidiaries that are Subsidiary Guarantors with respect thereto) not Purchase Agreements related to exceed an amount equal to $25,000,000;Train One, Train Two, Train Three, and Train Four; to
(ii) the incurrence by the Company and its Subsidiaries sum of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) the incurrence by the Company of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary Guarantees;
(iv) the incurrence by the Company or any of its 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 used in the business of the Company or such Subsidiary, in an aggregate outstanding principal amount not of Senior Debt (excluding Working Capital Debt and excluding Indebtedness or Guarantees incurred pursuant to exceed $10,000,000 at any time outstanding;
clauses (v) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange forf), or the net proceeds of which are used to extend(g), refinance(h), renew, replace, defease or refund, Indebtedness that was permitted by this Indenture to be incurred;
(vi) the incurrence by the Company or any of its Wholly Owned Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Subsidiaries; provided, however, that (i), (j), (k), (l), (m), (o), (p) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than a Wholly Owned Subsidiary and (iiq) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(vii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors 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 this Indenture to be incurred;
(viii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(x) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; and
(xi) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of IndebtednessSection 4.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall Borrower will not, and shall will not permit any of its Subsidiaries and Unrestricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee Guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, "“incur"”) any Indebtedness (including Acquired Indebtedness) Debt), and the Company shall Borrower will not issue any Disqualified Stock and shall will not permit any of its Subsidiaries and Unrestricted Subsidiaries to issue any shares of preferred stock; provided.
(b) The provisions of Section 7.1(a) hereof will not prohibit the incurrence of, howeveror prohibit the Borrower and its Subsidiaries from remaining liable with respect to, that any of the Company may incur following items of Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) the 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 such Disqualified Stock is issued would have been at least 2 to 1collectively, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall not apply to:“Permitted Debt”):
(i) the incurrence by the Company of Senior Revolving Debt and reimbursement obligations in respect of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries that are Subsidiary Guarantors with respect thereto) not to exceed an amount equal to $25,000,000Existing Debt;
(ii) the incurrence by the Company and its Subsidiaries Borrower of Indebtedness represented by the Existing Indebtedness, including the Senior Subordinated NotesLoan pursuant to this Agreement;
(iii) the incurrence by the Company Borrower of Indebtedness represented by the Senior Subordinated Notes and by pursuant to the Subsidiaries of Indebtedness represented by the Subsidiary GuaranteesSecurities Purchase Agreement;
(iv) the incurrence by the Company or any of its 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 used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $10,000,000 at any time outstanding;
(v) the incurrence by the Company or any of its Subsidiaries Borrower of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, refinance or replace Indebtedness that was permitted by this Indenture to be incurredis described in Section 7.1(b)(ii) and Section 7.1(b)(iv);
(viv) the incurrence by the Company Borrower or any of its Wholly Owned Subsidiaries of intercompany Indebtedness between owed to the Borrower or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Subsidiaries; provided, however, that:
(A) if the Borrower or any Guarantor is the obligor on such Indebtedness, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Loans, in the case of the Borrower, or the Loan Guarantee, in the case of a Guarantor;
(B) in each case where the Borrower or any Guarantor is the creditor, such Indebtedness is evidenced by a demand promissory note pledged to the Administrative Agent for the ratable benefit of the Lenders pursuant to the Guarantee and Collateral Agreement;
(C) the following will be deemed, in each case, to constitute an incurrence of Indebtedness by the Borrower or one of its Subsidiaries, as the case may be, that was not permitted by this Section 7.1(b)(v);
(i1) any subsequent issuance or transfer of Equity Interests that result in any Indebtedness originally incurred pursuant to this Section 7.1(b)(v) being held by a Person other than the Borrower or a Subsidiary thereof, and
(2) any sale or other transfer of any Indebtedness originally incurred pursuant to this Section 7.1(b)(v) to a Person that is not either the Borrower or a Wholly Owned Subsidiary thereof;
(vi) the issuance by any of the Borrower’s Subsidiaries to the Borrower or to any of its Wholly Owned Subsidiaries of shares of preferred stock; provided, however, that the following will be deemed, in each case, to constitute an issuance of preferred stock by such Subsidiary that was not permitted by this Section 7.1(b)(vi):
(A) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness preferred stock originally issued pursuant to this Section 7.1(b)(vi) being held by a Person other than the Borrower or a Wholly Owned Subsidiary and of the Borrower; and
(iiB) any sale or other transfer of any such Indebtedness preferred stock originally issued pursuant to this Section 7.1(b)(vi) to a Person that is not either the Company Borrower or a Wholly Wholly-Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may beBorrower;
(vii) the incurrence by the Company Borrower or any of its Subsidiaries that are Subsidiary Guarantors of Hedging Obligations that are incurred for in the purpose ordinary course of fixing or hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by this Indenture to be incurredbusiness;
(viii) the incurrence Guarantee by the Company Borrower or any of its Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition of the Borrower or a Subsidiary of the Borrower that was permitted to Indebtedness permitted be incurred by any other clause another provision of this paragraph) in an aggregate principal amount at any time outstanding not Section 7.1; provided that if the Indebtedness being guaranteed is subordinated to exceed or pari passu with the sum of $5,000,000Loans, then the Guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(ix) the incurrence by the Company's Unrestricted Borrower or any of its Subsidiaries of NonIndebtedness in respect of workers compensation claims, self-Recourse Debtinsurance obligations, providedbankers’ acceptances, however, that if any such Indebtedness ceases to be Non-Recourse Debt performance and surety bonds in the ordinary course of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Companybusiness;
(x) Indebtedness incurred the incurrence by the Company or Borrower of any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined Indebtedness represented by the Board of Directors of Series A Preferred Stock and Series B Preferred Stock outstanding or issued on the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; andClosing Date;
(xi) the incurrence by a Receivables Subsidiary the Borrower or any of its Subsidiaries of Indebtedness in an amount not to exceed $25,000,000 in arising from the honoring by a Qualified Receivables Transaction that bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is without recourse covered within five Business Days; and
(xii) Indebtedness incurred pursuant to the Company AskMen Acquisition Documents; provided that the aggregate amount of such Indebtedness does not exceed the Subsequent Acquisition Indebtedness Cap applicable to such AskMen Acquisition Documents. The accrual of interest, the accretion or to amortization of original issue discount on any Subsidiary Indebtedness, 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 in the form of additional shares of the Company same class of Disqualified Stock shall not be deemed to be an incurrence of Indebtedness or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision an issuance of Disqualified Stock for purposes of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of IndebtednessSection 7.1.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall Issuers will not, and shall will not permit any of its Subsidiaries and Unrestricted their 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 IndebtednessDebt) other than Permitted Debt and the Company shall Issuers will not issue any Disqualified Stock and shall will not permit any of its Subsidiaries and Unrestricted their Restricted Subsidiaries to issue any shares of preferred stockstock (other than to an Issuer or another Restricted Subsidiary); provided, however, that the Company Issuers may incur Indebtedness (including Acquired IndebtednessDebt) or issue shares of Disqualified Stock and any of the Company's Issuers' Restricted Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and or issue shares of preferred stock if: (i) if the Fixed Charge Coverage Issuers' Leverage Ratio for at the Company's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding time of incurrence of such Indebtedness or the date on which such additional Indebtedness is incurred or issuance of such Disqualified Stock is issued would have been at least 2 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issuedsuch preferred stock, as the case may be, at after giving pro forma effect to such incurrence or issuance and to the beginning use of the proceeds therefrom would have been no greater than (a) 7.0 to 1, if such four-quarter period; incurrence or issuance is on or prior to December 31, 2000, and (iib) no Default 6.5 to 1, if such incurrence or Event issuance is after December 31, 2000. The Issuers will not incur any Indebtedness that is contractually subordinated in right of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant payment to this paragraph any other Indebtedness of the Issuers unless the guaranteed such Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall not apply to:
(i) the incurrence by the Company also contractually subordinated in right of Senior Revolving Debt and reimbursement obligations in respect of letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal payment to the maximum potential liability of the Company and its Subsidiaries that are Subsidiary Guarantors with respect thereto) not to exceed an amount equal to $25,000,000;
(ii) the incurrence by the Company and its Subsidiaries of the Existing Indebtedness, including the Senior Subordinated Notes;
(iii) the incurrence by the Company of Indebtedness represented by the Discount Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary Guarantees;
(iv) the incurrence by the Company or any of its 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 used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $10,000,000 at any time outstanding;
(v) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, Indebtedness that was permitted by this Indenture to be incurred;
(vi) the incurrence by the Company or any of its Wholly Owned Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Subsidiarieson substantially identical terms; provided, however, that (i) any subsequent issuance or transfer no Indebtedness of Equity Interests that results in any such Indebtedness being held by a Person other than a Wholly Owned Subsidiary and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(vii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors 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 this Indenture to be incurred;
(viii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event Issuers shall be deemed to constitute an be contractually subordinated in right of payment to any other Indebtedness of the Issuers solely by virtue of being unsecured. The provisions of the first paragraph of this covenant shall not apply to the incurrence of Indebtedness by a Subsidiary any of the Company;
(x) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; and
(xi) the incurrence by a Receivables Subsidiary following items of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets)collectively, and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtedness."Permitted Debt"):
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company Borrower shall not, and shall not permit any of its Subsidiaries and Unrestricted 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 IndebtednessDebt) and the Company shall not or issue any shares of Disqualified Stock and shall will not permit any of its Subsidiaries and Unrestricted Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company Borrower may incur Indebtedness (including Acquired IndebtednessDebt) or issue shares of Disqualified Stock and the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and (including Acquired Debt) or issue shares of preferred stock if: (i) , in each case, the Fixed Charge Coverage Borrower’s Debt to Cash Flow Ratio for at the Company's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding time of incurrence of such Indebtedness or the date on which such additional Indebtedness is incurred or issuance of such Disqualified Stock is issued would have been at least 2 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issuedpreferred stock, as the case may be, after giving pro forma effect to such incurrence or issuance as of such date and to the use of the proceeds therefrom as if the same had occurred at the beginning of such four-the most recently ended four full fiscal quarter period; and (ii) period of the Borrower for which internal financial statements are available, would have been no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant greater than 7.0 to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph1.0. The foregoing provisions shall of the first paragraph of this Section 7.2 will not apply to:to the incurrence of any of the following (collectively, “Permitted Debt”):
(i) Indebtedness under the Loan Documents;
(ii) the incurrence by the Company of Senior Revolving Debt Borrower and reimbursement obligations in respect of letters of credit (and Guarantees the guarantee thereof by Subsidiaries that are Subsidiary Guarantors) the Guarantors of Indebtedness represented by the Second Lien Term Loan Obligations in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries that are Subsidiary Guarantors with respect thereto) not to exceed an $100.0 million (plus any accumulated or capitalized interest therein) less the aggregate amount equal of all mandatory repayments of any Indebtedness under such Second Lien Term Loan facility pursuant to $25,000,000;
(ii) Section 2.12 thereof; provided that such Indebtedness is subject to the incurrence by the Company and its Subsidiaries of the Existing Indebtedness, including the Senior Subordinated NotesIntercreditor Agreement;
(iii) the incurrence by the Company of Indebtedness represented by the Notes Borrower and by the its Restricted Subsidiaries of Indebtedness represented by the Subsidiary GuaranteesExisting Indebtedness;
(iv) the incurrence by the Company Borrower or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or Purchase Money ObligationsIndebtedness, 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 property, plant or equipment used in the business of the Company Borrower or such Restricted Subsidiary, in an aggregate principal amount not to exceed $10,000,000 20.0 million at any time outstanding, including all Permitted Refinancing Indebtedness incurred pursuant to clause (v) below to refund, replace or refinance any Indebtedness incurred pursuant to this clause (iv);
(v) the incurrence by the Company Borrower or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extendrenew, refund, refinance, renew, replace, defease or refund, discharge any Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture Agreement to be incurredincurred by the first paragraph of this Section 7.2, or by clauses (iii), (iv), (v), (vii), (viii), (ix), (x), (xi) (xii) or (xiii) of this paragraph;
(vi) the incurrence by the Company or any of its Wholly Owned Subsidiaries of intercompany Indebtedness between or among the Company Borrower and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned Restricted Subsidiaries; provided, however, that (ia) if the Borrower is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full of all Obligations with respect to this Agreement and (b) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Borrower or a Wholly Owned Subsidiary Restricted Subsidiary, and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company Borrower or a Wholly Owned Subsidiary Restricted Subsidiary, shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company Borrower or such Restricted Subsidiary, as the case may be;
(vii) the incurrence by the Company Borrower or any of its Restricted Subsidiaries that are Subsidiary Guarantors 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 Agreement to be incurredoutstanding;
(viii) the incurrence guarantee by the Company Borrower or any of its Subsidiaries that are Restricted Subsidiary Guarantors of Indebtedness (in addition that was permitted to Indebtedness permitted be incurred by any other clause another provision of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000Section 7.2;
(ix) the incurrence by accrual of interest, the Company's Unrestricted Subsidiaries accretion or amortization of Non-Recourse Debtoriginal issue discount, providedthe payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, however, that if any such Indebtedness ceases to be Non-Recourse Debt and the payment of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence dividends on Disqualified Stock in the form of Indebtedness by a Subsidiary additional shares of the Companysame class of Disqualified Stock;
(x) Indebtedness incurred the incurrence by the Company Borrower or any of its Restricted Subsidiaries that is a Subsidiary Guarantor of Indebtedness consisting of performance, bid or advance payment bonds, surety bonds, custom bonds, utility bonds and similar obligations arising in the ordinary course of business;
(xi) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, in each case incurred or from guarantees assumed in connection with the disposition of letters of creditany business, surety bonds asset or performance bonds securing the performance Subsidiary of the Company Borrower, provided that the maximum assumable Indebtedness shall at no time exceed the gross proceeds actually received by the Borrower and its Restricted Subsidiaries in connection with the disposition of any business, asset or Subsidiary of the Borrower;
(xii) the incurrence by the Borrower of Indebtedness in respect of Preferred Stock Exchange Notes issued as payment in kind interest on Preferred Stock Exchange Notes, to the extent such interest payments are made pursuant to the terms of the Preferred Stock Exchange Notes Indenture;
(xiii) the incurrence by the Borrower or any of its Restricted Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, additional Indebtedness in a an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred pursuant to clause (v) above to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xiii), not to exceed 25% of $35.0 million;
(xiv) the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined incurrence by the Board of Directors of the Company in good faith) actually received by the Company Borrower or any of its Restricted Subsidiaries of Indebtedness in the form of customary obligations under indemnification, incentive, non-compete, consulting, deferred compensation, earn-out or other similar arrangement incurred in connection with such dispositiona Permitted Investment; and
(xixv) the incurrence by a Receivables Subsidiary the Borrower or any of its Restricted Subsidiaries of Indebtedness incurred in connection with the customary financing of insurance premiums. For purposes of determining compliance with this Section 7.2, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xv) above or is entitled to be incurred pursuant to the first paragraph of this Section 7.2, the Borrower shall, in its sole discretion, classify and reclassify such item of Indebtedness in an amount not whole or in part in any manner that complies with this Section 7.2 and such item of Indebtedness will be treated as having been incurred pursuant to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse such clauses or pursuant to the Company or to first paragraph hereof. Accrual of interest, the accretion of accreted value, the payment of interest on any Subsidiary Indebtedness in the form of additional Indebtedness with the same terms and the payment of dividends on Disqualified Stock in the form of additional shares of the Company or their assets (other than such Receivables Subsidiary and its assets), and is same class of Disqualified Stock will not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee be deemed to be an incurrence of Indebtedness permitted by the terms or an issuance of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence Disqualified Stock for purposes of IndebtednessSection 7.2.
Appears in 1 contract
Sources: First Lien Credit Agreement (Spanish Broadcasting System Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries and Unrestricted 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 IndebtednessDebt and Disqualified Stock) and (ii) the Company shall not issue any Disqualified Stock and shall will not permit any of its Restricted Subsidiaries and Unrestricted Subsidiaries that is not a Guarantor to issue any shares of preferred stock; provided, however, that the Company and the Guarantors may incur Indebtedness (including Acquired IndebtednessDebt and Disqualified Stock) or issue shares of Disqualified Stock and the Company's Subsidiaries that are Subsidiary Guarantors may incur Indebtedness and issue preferred stock if: (i) if the 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 such Disqualified Stock is issued would have been at least 2 2.00 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, incurred at the beginning of such four-quarter period; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; provided, that no Guarantee may be incurred pursuant to this paragraph unless the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant to this paragraph. The foregoing provisions shall will not apply to:
to any of the following (each and all of which (1) may be issued or incurred, (2) constitutes an independent exception to the foregoing provisions and (3) may be incurred in addition to any other Indebtedness permitted to be incurred under the foregoing paragraph or any other exception): (i) the incurrence by the Company or any Guarantor of Senior Revolving Debt Indebtedness constituting term loans pursuant to one or more Credit Agreements in an aggregate principal amount outstanding at any one time not to exceed $250 million (A) less the aggregate amount of all mandatory repayments (a "Mandatory Repayment") of the principal of any term Indebtedness under such Credit Agreements that have been made since the date hereof (or which would otherwise have been required to have been made but for the fact that a prior optional repayment has been made of the principal of any term Indebtedness under such Credit Agreements) pursuant to the amortization schedule of any Credit Agreement (other than any Mandatory Repayment made concurrently with any refinancing or refunding of such Credit Agreements or required to be made with the net proceeds from the offering of the Notes being made hereby) and reimbursement obligations in respect (B) less the aggregate amount of all Net Proceeds of Asset Sales applied pursuant to clause (a) of the first sentence of the second paragraph under Section 4.10 hereof to permanently reduce Indebtedness under such Credit Agreements; (ii) the incurrence by the Company or any Guarantor pursuant to one or more Credit Agreements of Indebtedness incurred under revolving credit arrangements and letters of credit (and Guarantees thereof by Subsidiaries that are Subsidiary Guarantors) in an aggregate principal amount at any time outstanding (with letters of credit obligations being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries that are Subsidiary Guarantors with respect theretoor the relevant Guarantor thereunder) not to exceed an amount equal to the greater of (A) $25,000,000;
100.0 million in the aggregate or (iiB) the incurrence by the Company and its Subsidiaries sum of (x) 85% of the Existing Indebtedness, including Company's accounts receivable and (y) 50% of the Senior Subordinated Notes;
Company's inventory; (iii) the incurrence by the Company and any Guarantor of Indebtedness represented by the Notes and by the Subsidiaries of Indebtedness represented by the Subsidiary Guarantees;
any Guarantee thereof; (iv) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by (X) Capital Lease Obligations, mortgage financings financings, purchase money obligations or Purchase Money Obligationssale and leaseback transactions, 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 used in the business of the Company or such SubsidiaryRestricted Subsidiary and (Y) industrial revenue bonds, in an pollution control bonds or other tax exempt financing; provided the aggregate principal amount of Indebtedness incurred pursuant to this clause (iv) shall not to exceed $10,000,000 12.5 million at any time outstanding;
; (v) Existing indebtedness; (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 extend, refinance, renew, replace, defease or refund, Indebtedness indebtedness (or any successive refinancing thereof) that was permitted by this Indenture to be incurred;
(vi) the incurrence by the Company or any of its Wholly Owned Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries or between or among any Wholly Owned SubsidiariesIndenture; provided, however, that (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than a Wholly Owned Subsidiary and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(vii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors 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 this Indenture to be incurred;
(viii) the incurrence by the Company or any of its Subsidiaries that are Subsidiary Guarantors of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the sum of $5,000,000;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Company;
(x) Indebtedness incurred by the Company or any of its Subsidiaries that is a Subsidiary Guarantor arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries incurred by any Person acquiring all or a portion of such business, assets of a Subsidiary of the Company for the purpose of financing such acquisition, in a principal amount not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash Equivalents being valued at the fair market value thereof as determined by the Board of Directors of the Company in good faith) actually received by the Company or any of its Subsidiaries in connection with such disposition; and
(xi) the incurrence by a Receivables Subsidiary of Indebtedness in an amount not to exceed $25,000,000 in a Qualified Receivables Transaction that is without recourse to the Company or to any Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets), and is not guaranteed by any such Person. Notwithstanding any other provision of this covenant, a Guarantee of Indebtedness permitted by the terms of this Indenture at the time such Indebtedness was incurred shall not constitute a separate incurrence of Indebtedness.Restricted Subsidiaries
Appears in 1 contract
Sources: Indenture (Conmed Corp)