Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, incur any Indebtedness (including Acquired Debt), and the Company shall not permit any of its Restricted Subsidiaries to issue any Preferred Stock; provided, however, that the Company or any Guarantor may incur Indebtedness at any time prior to January 1, 2009 if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 to 1.0. (b) So long as no Default would be caused thereby, Section 4.09(a) shall not prohibit the incurrence or issuance of any of the following (collectively, "PERMITTED DEBT"): (i) the incurrence by the Company of Indebtedness under Credit Facilities (and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) in an aggregate principal amount at any one time outstanding pursuant to this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary of the Company to permanently repay any such Indebtedness pursuant to Section 4.10; (ii) the incurrence of Existing Indebtedness; (iii) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture; (iv) the incurrence 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, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $60.0 million at any time outstanding; (v) the incurrence by the Company or any Restricted Subsidiary of the Company of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under this Section 4.09(a) or clauses (ii), (iii), (iv), (v) or (xii) of this Section 4.09(b); (vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries; provided, however, that: (a) if the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a Guarantor, such Indebtedness must be unsecured and 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 Note Guarantee, in the case of a Guarantor; (b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or 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 Company or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a 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 (vi); (vii) the issuance of shares of Preferred Stock by any of the Company's Restricted Subsidiaries to the Company or to a Guarantor; provided that (i) any subsequent issuance or transfer of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not permitted by this clause (vii); (viii) the Guarantee by the Issuers or any of the 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; (ix) the incurrence of any Monetization Indebtedness; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof; (xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or (xii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xii), not to exceed $50.0 million; provided that the aggregate principal amount (or accreted value, as applicable) of Indebtedness of all Restricted Subsidiaries of the Company that are not Guarantors incurred pursuant to this clause (xii), together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not at any time exceed $25.0 million. For purposes of determining compliance with this Section 4.09, in the event that any proposed 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 Section 4.09(a), the Company shall be permitted to classify at the time of its incurrence such item of Indebtedness in any manner that complies with this Section 4.09. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued under this Indenture shall be deemed to have been incurred on such date in reliance on the exception provided by clause (i)
Appears in 2 contracts
Sources: Indenture (Rainbow Media Enterprises, Inc.), Indenture (Rainbow Media Enterprises, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, incur any Indebtedness (including Acquired Debt), and the Company shall not permit any of its Restricted Subsidiaries to issue any Preferred Stock; provided, however, that the Company or any Guarantor may incur Indebtedness at any time prior to January 1, 2009 if the Company's ’s Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's ’s Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 to 1.0.
(b) So long as no Default would be caused thereby, Section 4.09(a) shall not prohibit the incurrence or issuance of any of the following (collectively, "PERMITTED DEBT"“Permitted Debt”):
(i) the incurrence by the Company of Indebtedness under Credit Facilities (and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) in an aggregate principal amount at any one time outstanding pursuant to this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary of the Company to permanently repay any such Indebtedness pursuant to Section 4.10;
(ii) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture;
(iv) the incurrence 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, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $60.0 million at any time outstanding;
(v) the incurrence by the Company or any Restricted Subsidiary of the Company of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under this Section 4.09(a) or clauses (ii), (iii), (iv), (v) or (xii) of this Section 4.09(b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries; provided, however, that:
(a) if the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a Guarantor, such Indebtedness must be unsecured and 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 Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or a Guarantor; and
(c) (i) 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 Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a 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 (vi);
(vii) the issuance of shares of Preferred Stock by any of the Company's ’s Restricted Subsidiaries to the Company or to a Guarantor; provided that (i) any subsequent issuance or transfer of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not permitted by this clause (vii);
(viii) the Guarantee by the Issuers or any of the 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;
(ix) the incurrence of any Monetization Indebtedness;
(x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or
(xii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xii), not to exceed $50.0 million; provided that the aggregate principal amount (or accreted value, as applicable) of Indebtedness of all Restricted Subsidiaries of the Company that are not Guarantors incurred pursuant to this clause (xii), together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not at any time exceed $25.0 million. For purposes of determining compliance with this Section 4.09, in the event that any proposed 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 Section 4.09(a), the Company shall be permitted to classify at the time of its incurrence such item of Indebtedness in any manner that complies with this Section 4.09. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued under this Indenture shall be deemed to have been incurred on such date in reliance on the exception provided by clause (i)
Appears in 2 contracts
Sources: Indenture (Cablevision Systems Corp /Ny), Indenture (Cablevision Systems Corp /Ny)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, incur create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and the Company shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any Preferred Stock; provided, however, that the Company or any Guarantor may incur Indebtedness at any time prior to January 1, 2009 if the Company's Consolidated Leverage Ratio at the time shares of preferred stock. The provisions of the incurrence first paragraph of such Indebtedness is less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 to 1.0.
(b) So long as no Default would be caused thereby, this Section 4.09(a) 5.09 shall not prohibit the incurrence or issuance of any of the following items of Indebtedness (collectively, "PERMITTED DEBT"“Permitted Debt”):
(i) the incurrence by the Company and its Restricted Subsidiaries of additional Indebtedness and letters of credit under Credit Facilities (to procure feedstock, inventory, supplies, consumables and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) other assets, which would become Collateral, in an aggregate principal amount at any one time outstanding pursuant to under this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 5.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any of its Restricted Subsidiary Subsidiaries since the date of the Company this Indenture to permanently repay any such term Indebtedness under a Credit Facility or to repay any revolving credit Indebtedness under a Credit Facility and effect a corresponding commitment reduction thereunder pursuant to the covenant described above under Section 4.105.10;
(ii) the incurrence by the Company and its Restricted Subsidiaries of Existing Indebtedness;
(iii) the incurrence by the Issuers Company, and the Guarantors Guarantee thereof by the Guarantors, of (a) Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this the Indenture, and (b) Permitted Refinancing Indebtedness in respect of any of the foregoing clause (a);
(iv) the Guarantees by the Company and its Restricted Subsidiaries of Permitted Project Debt during the construction, commissioning, start-up, testing, completion and acceptance periods in aggregate principal amount not to exceed the lesser of (i) 80% of the amount equal to $1.50 (or such higher amount as proportionately adjusted by increases in Chemical Engineering’s CE Plant Cost Index from and after the Issue Date) per gallon per year of nameplate biodiesel production capacity with respect to any biodiesel refinery being financed or to be financed with such Permitted Project Debt and (ii) $162.0 million, and Permitted Refinancing Indebtedness in respect thereof;
(v) the incurrence 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 design, construction, installation or improvement of property, plant or equipment used in the business Permitted Business of the Company or such any of its Restricted SubsidiarySubsidiaries, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance refinance, replace, defease or replace discharge any Indebtedness incurred pursuant to this clause (iv), not to exceed $60.0 5.0 million in the aggregate outstanding at any time outstanding;
(vvi) the incurrence by the Company or any of its Restricted Subsidiary of the Company Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance refinance, replace, defease or replace discharge any Indebtedness (other than intercompany IndebtednessIndebtedness owed by one Credit Party to another Credit Party) that was permitted by this Indenture to be incurred under this Section 4.09(apursuant to clauses (i),(ii) or clauses (ii), (iii), (iv), (v) or (xii) of this Section 4.09(b)paragraph;
(vivii) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by between or among the Company or and any of its Restricted SubsidiariesSubsidiaries not to exceed $10.0 million in the aggregate at any time outstanding; provided, however, that:
that (a) if the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a Guarantor, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations with respect to this Indenture, the Notes, in the case of the Company, or Notes and the Note GuaranteeGuarantees, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is matures no less than 91 days following the Company or a Guarantor; and
maturity of the Notes and (ic)(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 Restricted Subsidiary thereof and or (iiB) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary thereof, 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 (vi);
(vii) the issuance of shares of Preferred Stock by any of the Company's Restricted Subsidiaries to the Company or to a Guarantor; provided that (i) any subsequent issuance or transfer of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not permitted by this clause (vii);
(viii) the Guarantee incurrence by the Issuers Company or any of the Guarantors its Restricted Subsidiaries of Indebtedness not to exceed in the aggregate at any time outstanding the greater of (a) $10.0 million or (b) the amount equal to 1.5 times Consolidated Cash Flow for the twelve calendar months for with financial statements are available immediate preceding the date of incurrence of such Indebtedness; provided, however, that (a) such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to this Indenture, the Notes and the Note Guarantees, (b) such Indebtedness matures no less than 91 days following the maturity of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Section 4.09Notes;
(ix) the incurrence by the Company or any of any Monetization Indebtednessits Restricted Subsidiaries of Hedging Obligations in the ordinary course of business (other than for speculative purposes);
(x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance and surety bonds in the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;ordinary course of business; and
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or
(xii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (arising from the honoring by a bank or accreted valueother financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as applicable) at such Indebtedness is covered within five business days. The Company will not incur, and will not permit any time outstandingGuarantor to incur, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant (including Permitted Debt) that is contractually subordinated in right of payment to this clause (xii), not to exceed $50.0 million; provided that the aggregate principal amount (or accreted value, as applicable) of any other Indebtedness of all Restricted Subsidiaries of the Company or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the Note Guarantees on substantially identical terms; provided, however, that are not Guarantors incurred pursuant no Indebtedness will be deemed to this clause (xii), together with all Permitted Refinancing be contractually subordinated in right of payment to any other Indebtedness incurred to refund, refinance of the Company solely by virtue of being unsecured or replace any such Indebtedness, shall not at any time exceed $25.0 millionby virtue of being secured on a first or junior Lien basis. For purposes of determining compliance with this Section 4.09Section, in the event that any an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xii) set forth above, or is entitled to be incurred pursuant to Section 4.09(a)the first paragraph of this covenant, the Company shall will be permitted to classify at the time of its incurrence such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.09covenant. Indebtedness under the Credit Agreement Facilities outstanding on the date on which Notes notes are first issued and authenticated under this Indenture shall the indenture will initially be deemed to have been incurred on such date in reliance on the exception provided by clause (1) of the definition of Permitted Debt. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this covenant; provided, in each such case, that the amount of any such accrual, accretion or payment is included in Fixed Charges of the Company as accrued. Notwithstanding any other provision of this covenant, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this covenant shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values. The amount of any Indebtedness outstanding as of any date will be:
(i)) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(ii) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(iii) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date of determination; and
(B) the amount of the Indebtedness of the other Person.
Appears in 2 contracts
Sources: Indenture (Nova Biosource Fuels, Inc.), Indenture (Nova Biosource Fuels, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, incur create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable with respect to (collectively, "INCUR") any Indebtedness (including Acquired Debt), ) and the Company shall not permit any of its Restricted Subsidiaries to issue any Preferred Stockshares of preferred stock; provided, however, that the Company or any Guarantor may incur Indebtedness at any time prior and may permit a Restricted Subsidiary to January 1, 2009 incur Indebtedness if the Company's Consolidated Leverage Ratio at the time of such incurrence and after giving effect thereto the incurrence of such Indebtedness is Leverage Ratio would be less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 6.5 to 1.0.. The foregoing limitations shall not apply to:
(b) So long as no Default would be caused thereby, Section 4.09(a) shall not prohibit the incurrence or issuance of any of the following (collectively, "PERMITTED DEBT"):
(i) the incurrence by the Company of Indebtedness under Credit Facilities (and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) in an aggregate principal amount at any one time outstanding pursuant to this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary of the Company to permanently repay any such Indebtedness pursuant to Section 4.10;
(ii) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture;
(iv) the incurrence 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, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $60.0 million at any time outstanding;
(v1) the incurrence by the Company or any Restricted Subsidiary of Senior Bank Debt in an aggregate amount not to exceed $100.0 million at any one time outstanding;
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(4) the issuance by the Company of the Notes;
(5) the incurrence by the Company and its Restricted Subsidiaries of Capital Lease Obligations and/or additional Indebtedness constituting purchase money obligations up to an aggregate of $5.0 million at any one time outstanding, provided that the Liens securing such Indebtedness constitute Permitted Liens;
(6) the incurrence of Indebtedness between (i) the Company and its Restricted Subsidiaries and (ii) the Restricted Subsidiaries;
(7) 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 the Indenture to be outstanding;
(8) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness arising out of letters of credit, performance bonds, surety bonds and bankers' acceptances incurred in the ordinary course of business up to an aggregate of $5.0 million at any one time outstanding;
(9) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness consisting of guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock; and
(10) the incurrence by the Company and its Restricted Subsidiaries of Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to repay, redeem, defease, extend, refinance, renew, replace or refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture referred to be incurred under this Section 4.09(a) or in clauses (ii)2) through (5) above, (iii), (iv), (v) or (xii) of this Section 4.09(b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries; provided, however, that:
(a) if the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a Guarantor, such Indebtedness must be unsecured and 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 Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or 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 Company or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a 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 (vi);
(vii10) the issuance of shares of Preferred Stock by any of the Company's Restricted Subsidiaries to the Company or to a Guarantor; provided that (i) any subsequent issuance or transfer of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not otherwise permitted by this clause (vii);
(viii) the Guarantee by the Issuers or any of the 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;
(ix) the incurrence of any Monetization Indebtedness;
(x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or
(xii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xii), not to exceed $50.0 million; provided that the aggregate principal amount (or accreted value, as applicable) of Indebtedness of all Restricted Subsidiaries of the Company that are not Guarantors incurred pursuant to this clause (xii), together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not at any time exceed $25.0 million. For purposes of determining compliance with this Section 4.09, in the event that any proposed 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 Section 4.09(a), the Company shall be permitted to classify at test set forth in the time first paragraph of its incurrence such item of Indebtedness in any manner that complies with this Section 4.09. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued under this Indenture shall be deemed to have been incurred on such date in reliance on the exception provided by clause (i)4.9.
Appears in 2 contracts
Sources: First Supplemental Indenture (Iron Mountain Inc/Pa), Second Supplemental Indenture (Iron Mountain Inc/Pa)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, incur create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and the Company shall will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries Subsidiary to issue any Disqualified Stock or Preferred Stock; provided, however, that the Company or any Guarantor may incur Indebtedness at any time prior to January 1, 2009 if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 to 1.0.
(b) So long as no Default would be caused thereby, Section 4.09(a) shall will not prohibit the incurrence or issuance of any of the following items of Indebtedness or the issuance of Disqualified Stock or Preferred Stock, as set forth below (collectively, "PERMITTED DEBT"“Permitted Debt”):
(i) the incurrence by the Company and any Restricted Subsidiary of Indebtedness under one or more Credit Facilities (and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) in an aggregate principal amount at any one time outstanding pursuant to under this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 millionthe sum of the principal amount outstanding and revolving commitments under the Exchange Credit Agreement and the 2017 Credit Agreement on the Issue Date, less after giving effect to the aggregate Refinancing Transactions, and with such amount being permanently reduced dollar-for-dollar by the principal amount of all Net Proceeds of Asset Sales applied by any Indebtedness outstanding under the Company or any Restricted Subsidiary Exchange Credit Agreement as of the Company to Issue Date that is permanently repay any such Indebtedness prepaid pursuant to Section 4.10any mandatory prepayment provisions thereunder;
(ii) the incurrence by the Company and any Restricted Subsidiary of Existing Indebtedness;
(iii) the incurrence by the Issuers and the Guarantors Company of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenturehereof and any Guarantees thereof by any Guarantor;
(iv) the incurrence by the Company or any of its Restricted Subsidiaries 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, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $60.0 40.0 million at any one time outstanding;
(v) the incurrence by the Company or any Restricted Subsidiary of the Company Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under this Section 4.09(a) or clauses (ii), (iii), (iv), (v) or (xiixvi) of this Section 4.09(b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries Subsidiary of intercompany Indebtedness owing to and held by between or among the Company or and any of its Restricted SubsidiariesSubsidiary; provided, however, that:
(a1) if the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a GuarantorIndebtedness, such Indebtedness must be unsecured and 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 Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or a Guarantor; and
(2) (i) 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 Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary thereof, shall Subsidiary; will 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 (vi);
(vii) the issuance incurrence by the Company or any Restricted Subsidiary of shares Hedging Obligations that are incurred for the purpose of Preferred Stock fixing, hedging or swapping interest rate risk with respect to any Indebtedness that is permitted by any the terms of this Indenture to be outstanding or for hedging foreign currency exchange risk, in each case to the extent the Hedging Obligations are incurred in the ordinary course of the Company's Restricted Subsidiaries to the Company or to a Guarantor; provided that (i) ’s financial management and not for any subsequent issuance or transfer of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not permitted by this clause (vii)speculative purpose;
(viii) the Guarantee by the Issuers Company or any of the Guarantors Restricted Subsidiary 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;
(ix) 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 any Monetization IndebtednessIndebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09;
(x) the incurrence by the Company or any Restricted Subsidiary of its Indebtedness, including Indebtedness represented by letters of credit for the account of the Company or any Restricted Subsidiary, incurred in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Company or any Restricted Subsidiary in the ordinary course of business; provided that the underlying obligation to perform is that of the Company or the Restricted Subsidiaries and not that of Indebtedness to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy Company’s Unrestricted Subsidiaries; and discharge this Indenture pursuant to Article 11 hereofprovided further, that such underlying obligation is not in respect of borrowed money;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or
(xii) the incurrence by the Company or any of its Restricted Subsidiaries Guarantor of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any one time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xi), not to exceed $15.0 million at any one time outstanding;
(xii) the incurrence by the Company or any Restricted Subsidiary of Indebtedness, including but not limited to Indebtedness represented by letters of credit for the account of the Company or any Restricted Subsidiary, arising from agreements of the Company or a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or Equity Interests of the Company or a Restricted Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Equity Interests for the purpose of financing such acquisition;
(xiii) the incurrence by the Company or any Restricted Subsidiary of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five Business Days of incurrence;
(xiv) the issuance of Preferred Stock of a Restricted Subsidiary to the Company that is pledged as Collateral, provided that any subsequent transfer that results in such Preferred Stock being held by a Person other than the Company or a Guarantor will be deemed to constitute an issuance of Preferred Stock not permitted by this clause (xiv);
(xv) the incurrence of Acquired Debt (but not any Indebtedness incurred in connection with, or in contemplation of such other Person merging with or into, or becoming a Subsidiary of, the Company) in a transaction that would constitute a Permitted Acquisition; provided, however, that (i) such Person either merges with or into the Company or becomes a Guarantor pursuant to the terms and conditions set forth in this Indenture, (ii) on the date such Person becomes a Subsidiary or is acquired by, or merges with or into, the Company and after giving pro forma effect thereto, the Total Leverage Ratio would be no greater than such ratio for the Company and the Restricted Subsidiaries immediately prior to such transaction and (iii) the aggregate principal amount of such Indebtedness incurred under this clause (xv), including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness, shall not exceed $37.5 million at any one time outstanding;
(xvi) Guarantees by the Company or any Restricted Subsidiary of Indebtedness of any Unrestricted Subsidiary; provided that the aggregate principal amount of such Guarantees of Indebtedness of any Unrestricted Subsidiary shall not exceed $15.0 million at any one time outstanding;
(xvii) the incurrence by the Company and any Restricted Subsidiary of unsecured Indebtedness (i) for borrowed money or (ii) incurred in respect of letters of credit facilities of the Company or any Restricted Subsidiary; provided that (a) any Indebtedness incurred under this clause (xvii) will have a scheduled maturity date that is later than the scheduled maturity date of the 2028 Private Exchange Notes and (b) the Total Leverage Ratio immediately after giving pro forma effect to the incurrence of such Indebtedness will be no greater than the lesser of (x) the Total Leverage Ratio immediately before giving pro forma effect to the incurrence of such Indebtedness plus 1.25 to 1.00 and (y) 5.00 to 1.00;
(xviii) the incurrence by the Company and any Restricted Subsidiary of additional Indebtedness in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xviii), not to exceed (a) $215.0 million of Indebtedness at any one time outstanding, plus (b) an additional $125.0 million if the First Lien Secured Leverage Ratio, immediately after giving pro forma effect to the incurrence of such Indebtedness, would be no greater than 2.00x (plus, in the case of any Permitted Refinancing Indebtedness, the Additional Refinancing Amount); provided that availability under this clause (xviii)(b) will be reduced by up to $50.0 million, on a dollar-for-dollar basis, on account of any prepayment or repayment of the 2023 Notes or the 2024 Notes in excess of $200.0 million from (x) cash from operations and (y) cash proceeds from the 2017 Credit Agreement;
(xix) the incurrence by the Company and any Guarantor of additional Indebtedness that is secured by a Lien that is pari passu with the Notes and the 2028 Private Exchange Notes in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xix), not to exceed $50.0 millionmillion at any one time outstanding; provided that availability under this clause (xix) will be reduced on a dollar-for-dollar basis on account of any Indebtedness incurred pursuant to clause (xxii);
(xx) the incurrence by the Company and any Restricted Subsidiary of Indebtedness to finance the acquisition, construction or improvement of the GEO HQ, Guarantees by the Company or any Restricted Subsidiary of any such Indebtedness, and extensions, renewals and replacements of any such Indebtedness and Guarantees that do not increase the outstanding principal amount thereof; provided that the aggregate principal amount (or accreted value, as applicable) of Indebtedness of all Restricted Subsidiaries of the Company that are not Guarantors incurred pursuant to permitted by this clause (xiixx), together with including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not exceed $50.0 million at any one time outstanding;
(xxi) Indebtedness consisting of obligations under any Permitted Convertible Indebtedness Call Transaction; and
(xxii) the incurrence by the Company and any Guarantor of additional Indebtedness on or before October 15, 2024 that is secured by a Lien on the Collateral that is junior to the 2017 Credit Agreement and the Exchange Credit Agreement and senior to the Notes and the 2028 Private Exchange Notes in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xxii), not to exceed $25.0 million. 1.8 million at any one time outstanding; provided that the holders of such Indebtedness or their Designated Representative shall have become party to the First Lien/Second Lien Intercreditor Agreement.
(c) For purposes of determining compliance with this Section 4.09, :
(i) in the event that any an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xiixxii) aboveof Section 4.09(b) hereof, or is entitled to be incurred pursuant to Section 4.09(a)) hereof, the Company shall be permitted to classify at the time of its incurrence such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.09. ; provided that Indebtedness under the Credit Agreement Agreements outstanding on the date on which Notes (i) are first issued and authenticated under this Indenture shall be deemed to have been incurred on such date in reliance on the exception provided in Section 4.09(b)(i) hereof and may not be reclassified and (ii) any Indebtedness incurred pursuant to Section 4.09(b)(xviii) hereof that constitutes First Lien Secured Obligations shall not be reclassified;
(ii) the principal amount of Indebtedness outstanding under any clause of this Section 4.09 shall be determined after giving effect to the application of proceeds of any such Indebtedness incurred to refund, refinance or replace any such other Indebtedness to the extent proceeds will be used substantially concurrently with such incurrence;
(iii) in connection with the Company or a Restricted Subsidiary’s entry into an instrument containing a binding commitment in respect of any revolving Indebtedness, the Company may elect, pursuant to an Officer’s Certificate delivered to the Trustee, to treat all or any portion of such commitment (any such amount elected until revoked as described below, an “Elected Amount”) under any Indebtedness which is to be incurred (or any commitment in respect thereof) or secured by a Lien, as the case may be, as being incurred as of such election date, and (i) any subsequent incurrence of Indebtedness under such commitment (so long as the total amount under such Indebtedness does not exceed the Elected Amount) shall not be deemed, for purposes of any calculation under this Indenture, to be an incurrence of additional Indebtedness or an additional Lien at such subsequent time, (ii) the Company may revoke an election of an Elected Amount at any time pursuant to an Officer’s Certificate delivered to the Trustee and (iii) for purposes of all subsequent calculations of the First Lien Secured Leverage Ratio and the Total Leverage Ratio, the Elected Amount (if any) shall be deemed to be outstanding, whether or not such amount is actually outstanding, so long as the applicable commitment remains outstanding;
(iv) if Indebtedness originally incurred in reliance upon the First Lien Secured Leverage Ratio or the Total Leverage Ratio under either clause (ixvii) or (xviii) of Section 4.09(b) is being Refinanced under either clause (xvii) or (xviii), as applicable, of Section 4.09(b) and such Refinancing would cause the maximum amount of Indebtedness thereunder to be exceeded at such time, then such Refinancing will nevertheless be permitted thereunder and such Indebtedness will be deemed to have been incurred under either clause (xvii) or (xviii), as applicable, of Section 4.09(b) so long as (x) the Liens, if any, securing such Refinancing Indebtedness have a lien priority equal or junior to the Liens securing the Indebtedness being Refinanced and (y) the principal amount of such Refinancing Indebtedness does not exceed the principal amount of Indebtedness being Refinanced;
(v) notwithstanding any other provision of this Section 4.09, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary 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; and
(vi) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness which is otherwise included in the determination of a particular amount of Indebtedness shall not be included in the determination of such amount of Indebtedness; provided that the Incurrence of the Indebtedness represented by such guarantee or letter of credit, as the case may be, was
Appears in 1 contract
Sources: Indenture (Geo Group Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, incur indirectly Incur any Indebtedness (including Acquired Debt), ) and the Company shall will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of Preferred Stock; provided, however, provided that the Company may Incur Indebtedness or any Guarantor issue shares of Disqualified Stock and its Restricted Subsidiaries may incur Indebtedness at any time prior to January 1, 2009 or issue Disqualified Stock or Preferred Stock if either:
(i) the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 7.0 ___ to 1.0 and1; or
(ii) the Consolidated Capital Ratio is ___. Notwithstanding the foregoing, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time provisions of the incurrence of such Indebtedness is less than 6.0 preceding paragraph will not apply to 1.0.
(b) So long as no Default would be caused thereby, Section 4.09(a) shall not prohibit the incurrence or issuance Incurrence of any of the following (collectively, "PERMITTED DEBT"):items of Indebtedness:
(ia) the incurrence Incurrence by the Company Issuer and any Guarantor of Indebtedness under Credit Facilities (and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) Working Capital Facility in an aggregate principal amount at any one time outstanding pursuant to under this clause (ia) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 million, less 150,000,000;
(b) the aggregate amount of all Net Proceeds of Asset Sales applied Incurrence by the Company or any and its Restricted Subsidiary Subsidiaries of Indebtedness in existence on the Company to permanently repay any such Indebtedness pursuant to Section 4.10date of this Indenture;
(iic) the incurrence of Existing Indebtedness;
(iii) the incurrence Incurrence by the Issuers Issuer and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture;
(iv) the incurrence 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, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $60.0 million at any time outstanding;
(v) the incurrence by the Company or any Restricted Subsidiary of the Company of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under this Section 4.09(a) or clauses (ii), (iii), (iv), (v) or (xii) of this Section 4.09(b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries; provided, however, that:
(a) if the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a Guarantor, such Indebtedness must be unsecured and 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 Note Guarantee, Guarantees in the case of a Guarantorconnection therewith;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or 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 Company or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a 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 (vi);
(vii) the issuance of shares of Preferred Stock by any of the Company's Restricted Subsidiaries to the Company or to a Guarantor; provided that (i) any subsequent issuance or transfer of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not permitted by this clause (vii);
(viii) the Guarantee by the Issuers or any of the 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;
(ix) the incurrence of any Monetization Indebtedness;
(x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or
(xii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xii), not to exceed $50.0 million; provided that the aggregate principal amount (or accreted value, as applicable) of Indebtedness of all Restricted Subsidiaries of the Company that are not Guarantors incurred pursuant to this clause (xii), together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not at any time exceed $25.0 million. For purposes of determining compliance with this Section 4.09, in the event that any proposed 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 Section 4.09(a), the Company shall be permitted to classify at the time of its incurrence such item of Indebtedness in any manner that complies with this Section 4.09. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued under this Indenture shall be deemed to have been incurred on such date in reliance on the exception provided by clause (i)
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, Incur, directly or indirectly, incur any Indebtedness (including Acquired Debt), and the Company shall not permit any of its Restricted Subsidiaries to issue any Preferred StockIndebtedness; provided, however, that the Company or any Guarantor and the Restricted Subsidiaries will be entitled to Incur Indebtedness if, on the date of such Incurrence and after giving effect thereto on a pro forma basis, the Consolidated Coverage Ratio exceeds 2.0 to 1.0; provided, that the amount of Indebtedness that may incur Indebtedness be incurred pursuant to the foregoing by Restricted Subsidiaries that are not Guarantors shall not exceed $5.0 million at any one time prior to January 1, 2009 if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 to 1.0outstanding.
(b) So long as no Default would be caused thereby, Notwithstanding Section 4.09(a) shall not prohibit ), the incurrence Company and its Restricted Subsidiaries will be entitled to Incur any or issuance of any all of the following (collectively, "PERMITTED DEBT"):Indebtedness:
(i1) the incurrence Indebtedness Incurred by the Company of Indebtedness or any Restricted Subsidiary under the ABL Credit Facilities (Facility and the incurrence by Co-Issuer Corp. issuance and the Guarantors creation of Guarantees thereof) in an aggregate principal amount at any one time outstanding pursuant to this clause (i) letters of credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunderface amount thereof) in an aggregate amount not to exceed the greater of (A) $950.0 million, less 25.0 million or (B) the aggregate amount Borrowing Base as of all Net Proceeds any date of Asset Sales applied by the Company or any Restricted Subsidiary of the Company to permanently repay any such Indebtedness pursuant to Section 4.10Incurrence;
(ii2) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture;
(iv) the incurrence 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, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $60.0 million at any time outstanding;
(v) the incurrence by the Company or any Restricted Subsidiary of the Company of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under this Section 4.09(a) or clauses (ii), (iii), (iv), (v) or (xii) of this Section 4.09(b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing owed to and held by the Company or any of its a Restricted SubsidiariesSubsidiary; provided, however, that:
that (aA) any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the Incurrence of such Indebtedness by the obligor thereon and (B) if the Company or any Guarantor is the obligor on such Indebtedness and Indebtedness, such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a Guarantor, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations obligations with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or a Guarantor; Notes and
(i) 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 Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a 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 (vi);
(vii) the issuance of shares of Preferred Stock by any of the Company's Restricted Subsidiaries to the Company or to a Guarantor; provided that (i) any subsequent issuance or transfer of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not permitted by this clause (vii);
(viii) the Guarantee by the Issuers or any of the 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;
(ix) the incurrence of any Monetization Indebtedness;
(x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or
(xii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xii), not to exceed $50.0 million; provided that the aggregate principal amount (or accreted value, as applicable) of Indebtedness of all Restricted Subsidiaries of the Company that are not Guarantors incurred pursuant to this clause (xii), together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not at any time exceed $25.0 million. For purposes of determining compliance with this Section 4.09, in the event that any proposed 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 Section 4.09(a), the Company shall be permitted to classify at the time of its incurrence such item of Indebtedness in any manner that complies with this Section 4.09. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued under this Indenture shall be deemed to have been incurred on such date in reliance on the exception provided by clause (i)
Appears in 1 contract
Sources: Indenture (PRETIUM CANADA Co)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, incur create, incur, issue, assume, Guarantee or otherwise become directly or indirectly liable with respect to (or, collectively, “incur”) any Indebtedness (including Acquired Debt), ) and the Company shall not permit any of its Restricted Subsidiaries Subsidiary to issue any Preferred Stockshares of preferred stock; provided, however, that the Company or any Guarantor may incur Indebtedness at any time prior and may permit a Restricted Subsidiary to January 1, 2009 incur Indebtedness or issue preferred stock if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 to 1.0.
(b) So long as no Default would be caused thereby, Section 4.09(a) shall not prohibit the incurrence or issuance of any and after giving effect thereto (including a pro forma application of the following (collectivelynet proceeds therefrom), "PERMITTED DEBT"):the leverage ratio would be less than 6.5 to 1.0. The foregoing limitations shall not apply to:
(i1) the incurrence by the Company or any Restricted Subsidiary of Indebtedness and letters of credit under Credit Facilities (and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) in an aggregate principal amount at any one time outstanding pursuant to under this clause (i1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its the Restricted Subsidiaries thereunder) not to exceed $950.0 3,260.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary of the Company to permanently repay any such Indebtedness pursuant to Section 4.10;
(ii2) the incurrence issuance of Existing Indebtednessthe Note Guarantees and the Holdings Notes Guarantees on the date hereof;
(iii) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture;
(iv3) the incurrence by the Company or any of its and the Restricted Subsidiaries of Indebtedness represented the Existing Indebtedness;
(4) the issuance of the Notes and the Holdings Notes on the date hereof;
(5) the incurrence by the Company and the Restricted Subsidiaries of Capital Lease Obligations, mortgage financings or and/or additional Indebtedness constituting purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred with respect thereto, up to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $60.0 million an aggregate at any one time outstandingoutstanding of the greater of (i) $250.0 million and (ii) 5.0% of Consolidated Total Assets as of any date of incurrence;
(v6) the incurrence or issuance of Indebtedness or preferred stock between (i) the Company and the Restricted Subsidiaries and (ii) the Restricted Subsidiaries;
(7) the incurrence by the Company and the Restricted Subsidiaries of Hedging Obligations in the ordinary course of business;
(8) the incurrence by the Company and the Restricted Subsidiaries of Indebtedness arising out of letters of credit, performance bonds, surety bonds and bankers’ acceptances incurred in the ordinary course of business;
(9) the incurrence by the Company and the Restricted Subsidiaries of Indebtedness consisting of Guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock;
(10) the incurrence by the Company or any Restricted Subsidiary of Indebtedness arising from the Company honoring by a bank or other financial institution of Permitted Refinancing a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under this Section 4.09(a) or clauses (ii), (iii), (iv), (v) or (xii) of this Section 4.09(b)is covered within five business days;
(vi11) the incurrence Guarantee by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries; provided, however, that:
(a) if the Company or any Subsidiary Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a Guarantor, such Indebtedness must be unsecured and 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 Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or 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 Company or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a 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 (vi);
(vii) the issuance of shares of Preferred Stock by any of the Company's Restricted Subsidiaries to the Company or to a Guarantor; provided that (i) any subsequent issuance or transfer of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not permitted by this clause (vii);
(viii) the Guarantee by the Issuers or any of the Guarantors of Indebtedness of the Company or a Restricted Subsidiary and the Guarantee by any non-guarantor Subsidiary of Indebtedness of another non-guarantor Subsidiary, in each case, to the Company extent that the Guaranteed Indebtedness was permitted to be incurred by another provision of this Section 4.094.10; provided that if the Indebtedness being Guaranteed is contractually subordinated to the Notes or the Note Guarantees, as applicable, then the Guarantee must be subordinated to the same extent as the Indebtedness Guaranteed;
(ix12) the incurrence by the Company and the Restricted Subsidiaries of any Monetization Refinancing Indebtedness issued in exchange for, or the proceeds of which are used to repay, redeem, defease, extend, refinance, renew, replace or refund, Indebtedness (other than intercompany Indebtedness;) referred to in clauses (2) through (5) above, this clause (12) or clause below or that was otherwise permitted to be incurred pursuant to the test set forth in the first paragraph of this Section 4.10; and
(x13) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or
(xii) the incurrence by the Company or any of its Restricted Subsidiaries Subsidiary of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted permitted Refinancing Indebtedness incurred to renew, refund, refinance refinance, replace, defease or replace discharge any Indebtedness incurred pursuant to this clause (xii13), not to exceed $50.0 million; provided . Notwithstanding the foregoing, Restricted Subsidiaries that are non-guarantor Subsidiaries will not be permitted to incur Indebtedness or issue preferred stock pursuant to the first paragraph of this Section 4.10 or clause (13) above if, after giving effect to such incurrence or issuance, the aggregate principal amount (or accreted value, as applicable) of Indebtedness of all Restricted Subsidiaries that are non-guarantor Subsidiaries (excluding intercompany Indebtedness between or among the Company and the Restricted Subsidiaries) outstanding pursuant to such first paragraph or such clause, together with the aggregate liquidation preference of preferred stock issued by Restricted Subsidiaries that are non-guarantor Subsidiaries (excluding intercompany preferred stock issued between or among the Company and the Restricted Subsidiaries) outstanding pursuant to such provisions, would exceed the greater of (x) $750.0 million and (y) 1.0x Adjusted EBITDA as of any date of incurrence. The Company will not incur, and the Company will not permit any Subsidiary Guarantor to incur, any Indebtedness that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Subsidiary Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Note Guarantee on substantially identical terms; provided, however, that are not Guarantors incurred pursuant no Indebtedness will be deemed to this clause (xii), together with all Permitted Refinancing be contractually subordinated in right of payment to any other Indebtedness incurred to refund, refinance of the Company or replace any such Indebtedness, shall not at any time exceed $25.0 milliona Subsidiary Guarantor solely by virtue of being unsecured or by virtue of being secured on a junior priority basis. For purposes of determining compliance with this Section 4.094.10, for the avoidance of doubt, in the event that any proposed an item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt permitted debt described in clauses (i1) through (xii13) above, or is entitled to be incurred pursuant to the first paragraph of this Section 4.09(a)4.10, the Company shall will be permitted to classify at the time of its incurrence such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.094.10. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued and authenticated under this Indenture shall will at all times be deemed to have been incurred on such date in reliance on the exception provided by clause (1) above. The accrual of interest or preferred stock dividends, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on preferred stock or Disqualified Stock in the form of additional shares of the same class of preferred stock or Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of preferred stock or Disqualified Stock for purposes of this Section 4.10; provided, in each such case, that the amount thereof is included in the Consolidated Interest Expense of the Company as accrued. For purposes of determining compliance with any U.S. Dollar-denominated restriction on the incurrence of Indebtedness, the U.S. Dollar-equivalent principal amount of Indebtedness denominated in a currency other than U.S. Dollars will be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred; provided that if such Indebtedness is incurred to extend, replace, refund, refinance, renew or defease, or that is exchanged for, other Indebtedness denominated in a currency other than U.S. Dollars, and such extension, replacement, refunding, refinancing, renewal, defeasance or exchange would cause the applicable U.S. Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such extension, replacement, refunding, refinancing, renewal, defeasance or exchange, such U.S. Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed, defeased or exchanged. Notwithstanding any other provision of this Section 4.10, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this Section 4.10 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values. The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(3) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(i)) the Fair Market Value of such assets at the date of determination; and
(ii) the amount of the Indebtedness of the other Person.
Appears in 1 contract
Sources: Senior Indenture (Iron Mountain Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) 3.1 The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, incur create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”, and provided that, for the avoidance of doubt, no Indebtedness shall be deemed to have been “incurred” merely on the basis that an unutilised commitment with respect to Indebtedness has been made available to the Company) any Indebtedness (including Acquired Debt), and the Company shall will not issue any Disqualified Stock or any shares of preferred stock and will not permit any of its Restricted Subsidiaries to issue any Preferred Stock; provided, however, that the Company Disqualified Stock or any Guarantor may incur Indebtedness at any time prior to January 1, 2009 if the Company's Consolidated Leverage Ratio at the time shares of the incurrence preferred stock. |EU-DOCS\34803319.2||
3.2 Paragraph 3.1 of such Indebtedness is less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 to 1.0.
(b) So long as no Default would be caused thereby, Section 4.09(a) shall this Schedule will not prohibit the incurrence or issuance of any of the following items of Indebtedness by the Company or any Restricted Subsidiary (collectively, "PERMITTED DEBT"“Permitted Debt”):
(i) 3.2.1 the incurrence by the Company and any Restricted Subsidiary of Indebtedness under any Finance Document;
3.2.2 the incurrence by the Company and its Restricted Subsidiaries of (a) Indebtedness listed on the Existing Indebtedness Schedule and (b) (only until and including the first Business Day following the Closing Date) the Existing Debt;
3.2.3 the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness and letters of credit under Credit Facilities (and including the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereofRevolving Credit Facility Agreement) in an aggregate principal amount at any one time outstanding pursuant to under this clause (i) paragraph 3.2.3 (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 £75.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary of the Company to permanently repay any such Indebtedness pursuant to Section 4.10;
(ii) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture;
(iv) 3.2.4 the incurrence 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, :
(a) incurred for the purpose of financing (whether prior to or within 270 days after) all or any part of the purchase price or cost of construction design, construction, installation or improvement of property, plant or equipment (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets) or other assets used or useful in the business of the Company or such any of its Restricted SubsidiarySubsidiaries, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance refinance, replace, defease or replace discharge any Indebtedness incurred pursuant to this clause sub-paragraph (iva), not to exceed the greater of £20 million and 27 per cent. of LTM Consolidated EBITDA at any time outstanding; or
(b) incurred in connection with Soho Farmhouse Rhinebeck (or such other name for a Soho Farmhouse in the Rhinebeck, New York area) in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this sub-paragraph (b), not to exceed $60.0 220 million at any time outstanding;.
(v) 3.2.5 the incurrence by the Company or any of its Restricted Subsidiary of the Company Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance refinance, replace, defease or replace discharge any Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture Schedule to be incurred under this Section 4.09(a) paragraph 3.2.2 or clauses (ii), (iii), (iv), (v) or (xii) of this Section 4.09(b)3.2.5;
(vi) 3.2.6 the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by between or among the Company or and any of its Restricted Subsidiaries; provided, however, that:
(a) if (x) the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a Guarantor, such Indebtedness must be unsecured and 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 Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness borrower is the Company or a Guarantor and the payee is not the Company or a Guarantor, (y) the aggregate amount of the Indebtedness owed by |EU-DOCS\34803319.2|| such borrower to such payee is GBP 1,000,000 or more and (z) such Indebtedness is (or will be) outstanding for more than 10 Business Days, the relevant payee shall accede to the Intercreditor Agreement as an Intra-Group Lender; 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 Company or a Restricted Subsidiary thereof of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary thereof, shall of the Company will 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 (vi)paragraph 3.2.6;
(vii) 3.2.7 the issuance of shares of Preferred Stock by any of the Company's Restricted Subsidiaries to the Company or to a Guarantorany of its Restricted Subsidiaries of shares of preferred stock; provided that provided, however, that:
(ia) any subsequent issuance or transfer of any Equity Interests that results in any such Preferred Stock preferred stock being held by a Person other than the Company or a Guarantor and Restricted Subsidiary of the Company; and
(iib) any sale or other transfer of any such Preferred Stock preferred stock to a Person that is not either the Company or a Guarantor shall Restricted Subsidiary of the Company, will be deemed, in each case, to constitute an issuance of such shares of Preferred Stock preferred stock by such Restricted Subsidiary that was not permitted by this clause (vii)paragraph 3.2.7;
(viii) 3.2.8 the Guarantee incurrence by the Issuers Company or any of its Restricted Subsidiaries of Hedging Obligations in connection with Indebtedness otherwise permitted to be incurred by this Agreement or otherwise in the Guarantors ordinary course of business;
3.2.9 the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Section 4.09paragraph 3 (Incurrence of Indebtedness and Issuance of Preferred Stock) (other than, for the avoidance of doubt, paragraph 3.2.19); provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Indebtedness under the Finance Documents, then the guarantee of such Indebtedness shall be subordinated or pari passu to the Indebtedness under the Finance Documents, as applicable, to the same extent as the Indebtedness being guaranteed;
(ix) the incurrence of any Monetization Indebtedness;
(x) 3.2.10 the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, bids and performance or surety bonds in the ordinary course of business and, in any such case, any reimbursement obligations in connection therewith;
3.2.11 the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from the honouring 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 of incurrence;
3.2.12 arising under any local facilities (including any overdraft, working capital facility, other bilateral financing or asset backed loan) incurred by any Restricted Subsidiary, provided that: |EU-DOCS\34803319.2||
(a) such Restricted Subsidiary has incurred Indebtedness under such local facility in a jurisdiction where the proceeds of such local facility cannot be on-lent to the extent Company or any other Restricted Subsidiary (due to local law, tax or other regulatory or legal restrictions) and the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any recourse of the foregoing as a dividendcreditor of such local facility is limited to such Restricted Subsidiary only; or
(xiib) the aggregate principal amount of all such local facilities outstanding at any time (other than those incurred pursuant to paragraph (a) above) shall not exceed the greater of £12.5 million and 17 per cent. of LTM Consolidated EBITDA;
3.2.13 the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company and any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each other than an obligation for money borrowed) and other customary non-recourse guarantees and environmental indemnities or guarantees of lease and/or rental obligations in the ordinary course of business;
3.2.14 the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness consisting of (A) the financing of insurance premiums, (B) take-or-pay obligations contained in supply arrangements or (C) deferred compensation or equity-based compensation to current or former officers, directors, consultants, advisors or employees thereof (other than Permitted Holders), in each case in the ordinary course of business;
3.2.15 the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness or other Obligations arising from agreements of the Company or any of its Restricted 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 Capital Stock of a Subsidiary, provided that the maximum aggregate liability in respect of all such Indebtedness (or other Obligations) shall at no time exceed the gross proceeds, including the Fair Market Value of 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 Company and its Restricted Subsidiaries in connection with such disposition;
3.2.16 Indebtedness, Disqualified Stock or preferred stock of (x) the Company or any of its Restricted Subsidiaries or (y) a Subsidiary incurred and outstanding or committed to be incurred on or prior to the date on which such Subsidiary was acquired by the Company or any of its Restricted Subsidiaries or merged, consolidated or amalgamated with or into the Company or any of its Restricted Subsidiaries in accordance with the terms of this Schedule (other than Indebtedness incurred in contemplation of, or in connection with, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary of, or was otherwise acquired by, the Company or a Restricted Subsidiary); provided, however, that such Indebtedness is discharged within six Months of the acquisition of such Subsidiary;
3.2.17 Indebtedness incurred on behalf of, or representing guarantees of Indebtedness of, Joint Ventures of the Company or any Restricted Subsidiary; provided, however, that the only recourse on such Indebtedness (including any guarantee of Indebtedness but excluding in all cases lease guarantees, cost overrun guarantees and similar guarantees where the |EU-DOCS\34803319.2|| relevant guarantees and arrangements guaranteed by those guarantees have, in each case, been entered into on a customary arm’s length basis and otherwise in compliance with paragraph 7 (Transactions with Affiliates), which guarantees may be incurred under this paragraph by the Company or any Restricted Subsidiary with respect to any Joint Venture on a recourse basis) is limited to the Company’s or such Restricted Subsidiary’s Equity Interests in (and/or receivables owed to it by) the related Joint Venture;
3.2.18 the incurrence by the Company or any of its Restricted Subsidiaries of one or more letter of credit facilities and the issuance of letters of credit thereunder (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) in an aggregate principal amount at any time outstanding not to exceed the greater of £8.25 million and 11 per cent. of LTM Consolidated EBITDA;
3.2.19 the incurrence by any SPV Entity of any SPV Indebtedness that is Non-Recourse Debt; provided that the Indebtedness of any Miami SPV (the “Miami Debt”) shall be permitted under this paragraph 3.2.19 and shall as a result be deemed to be SPV Indebtedness for the purposes of this Agreement notwithstanding that it is not Non-Recourse Debt provided that (A) the recourse in respect of the Miami Debt is limited to a guarantee provided by US AcquireCo, Inc. on substantially the same basis as the guarantee extended as of the date of this Agreement (but this proviso (A) shall not prohibit any increase to the amount of the Miami Debt (or any increase to the amount of the guarantee thereof, pro rata to any increase to the Miami Debt) following the date of this Agreement), (B) pro forma for any increase, the Miami Loan to Value Ratio does not exceed 80%, and (C) the terms of the Miami Debt do not include any maintenance financial covenant relating to the Company or any member of the Restricted Group (other than any financial covenants relating to any Miami SPV and/or US AcquireCo, Inc.);
3.2.20 the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness (including Acquired Debt) or the issuance by any Restricted Subsidiary of preferred stock, in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance refinance, replace, defease or replace discharge any Indebtedness incurred pursuant to this clause (xii)paragraph 3.2.20, not to exceed $50.0 million; provided that the aggregate principal amount (greater of £37.5 million and 50 per cent. of LTM Consolidated EBITDA;
3.2.21 the incurrence by the Company or accreted value, as applicable) any of Indebtedness of all its Restricted Subsidiaries of Indebtedness arising under any bank guarantee, surety (Bürgschaft) or any other instrument issued by a bank or financial institution in order to comply with the requirements under section 8a of the German Act on Partial Retirement (Altersteilzeitgesetz) or under section 7e of the Fourth Book of the German Social Code (Sozialgesetzbuch IV); and
3.2.22 [Reserved].
3.3 The Company shall not incur, and shall not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the guarantees provided under this Agreement on substantially identical terms; provided, however, that are no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company solely by virtue of being unsecured or by virtue of being secured on a first or junior Lien basis. The Company shall |EU-DOCS\34803319.2|| not Guarantors incurred pursuant to this clause (xii)incur, together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, and shall not at permit any time exceed $25.0 million. Guarantor to incur, any Indebtedness (including Permitted Debt) that is expressed to rank or ranks as to payment or security so that it is subordinated to any of the Super Senior Liabilities (as defined in the Intercreditor Agreement) but are senior to the Pari Passu Liabilities (as defined in the Intercreditor Agreement) under this Agreement.
3.4 For purposes of determining compliance with this Section 4.09paragraph 3 (Incurrence of Indebtedness and Issuance of Preferred Stock), in the event that any an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses paragraphs 3.2.1 to 3.2.21 (i) through (xii) above, or is entitled to be incurred pursuant to Section 4.09(ainclusive), the Company shall will be permitted to classify at the time of its incurrence such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.09paragraph 3. Additionally, all or any portion of any item of Indebtedness may later be reclassified as having been incurred under any sub-paragraph of paragraph 3.2 so long as such Indebtedness is permitted to be incurred pursuant to such provision at the time of reclassification. Notwithstanding the foregoing, all Indebtedness incurred from time to time under the Revolving Credit Facility Agreement outstanding on the date on which Notes are first issued under this Indenture shall will be deemed to have been incurred on such date in reliance on the exception provided by clause (i)3.2.3 and the Company will not be permitted to reclassify any portion of such Indebtedness thereafter.
3.5 The accrual of interest, the accretion or amortisation of original issue discount or liquidation preference, 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, the payment of dividends on Disqual
Appears in 1 contract
Sources: Notes Purchase Agreement (Membership Collective Group Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, incur create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable with respect to (collectively, "INCUR") any Indebtedness (including Acquired Debt), ) and the Company shall not permit any of its Restricted Subsidiaries to issue any Preferred Stockshares of preferred stock; provided, however, that the Company or any Guarantor may incur Indebtedness at any time prior and may permit a Restricted Subsidiary to January 1, 2009 incur Indebtedness if the Company's Consolidated Leverage Ratio at the time of such incurrence and after giving effect thereto the incurrence of such Indebtedness is Leverage Ratio would be less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 6.5 to 1.0.. The foregoing limitations shall not apply to:
(b) So long as no Default would be caused thereby, Section 4.09(a) shall not prohibit the incurrence or issuance of any of the following (collectively, "PERMITTED DEBT"):
(i) the incurrence by the Company of Indebtedness under Credit Facilities (and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) in an aggregate principal amount at any one time outstanding pursuant to this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary of the Company to permanently repay any such Indebtedness pursuant to Section 4.10;
(ii) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture;
(iv) the incurrence 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, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $60.0 million at any time outstanding;
(v1) the incurrence by the Company or any Restricted Subsidiary of Senior Bank Debt in an aggregate amount not to exceed $100.0 million at any one time outstanding;
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(4) the issuance by the Company of the Notes;
(5) the incurrence by the Company and its Restricted Subsidiaries of Capital Lease Obligations and/or additional Indebtedness constituting purchase money obligations up to an aggregate of $5.0 million at any one time outstanding, provided that the Liens securing such Indebtedness constitute Permitted Liens;
(6) the incurrence of Indebtedness between (i) the Company and its Restricted Subsidiaries and (ii) the Restricted Subsidiaries;
(7) 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 the Indenture to be outstanding;
(8) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness arising out of letters of credit, performance bonds, surety bonds and bankers' acceptances incurred in the ordinary course of business up to an aggregate of $5.0 million at any one time outstanding;
(9) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness consisting of guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock; and
(10) the incurrence by the Company and its Restricted Subsidiaries of Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to repay, redeem, defease, extend, refinance, renew, replace or refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture referred to be incurred under this Section 4.09(a) or in clauses (ii)2) through (5) above, (iii), (iv), (v) or (xii) of this Section 4.09(b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries; provided, however, that:
(a) if the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a Guarantor, such Indebtedness must be unsecured and 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 Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or 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 Company or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a 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 (vi);
(vii10) the issuance of shares of Preferred Stock by any of the Company's Restricted Subsidiaries to the Company or to a Guarantor; provided that (i) any subsequent issuance or transfer of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not otherwise permitted by this clause (vii);
(viii) the Guarantee by the Issuers or any of the 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;
(ix) the incurrence of any Monetization Indebtedness;
(x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or
(xii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xii), not to exceed $50.0 million; provided that the aggregate principal amount (or accreted value, as applicable) of Indebtedness of all Restricted Subsidiaries of the Company that are not Guarantors incurred pursuant to this clause (xii), together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not at any time exceed $25.0 million. For purposes of determining compliance with this Section 4.09, in the event that any proposed 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 Section 4.09(a), the Company shall be permitted to classify at test set forth in the time first paragraph of its incurrence such item of Indebtedness in any manner that complies with this Section 4.09. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued under this Indenture shall be deemed to have been incurred on such date in reliance on the exception provided by clause (i)4.8.
Appears in 1 contract
Sources: First Supplemental Indenture (Iron Mountain Inc/Pa)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, incur create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable with respect to (collectively, "incur") any Indebtedness (including Acquired Debt), ) and the Company shall will not permit any of its Restricted Subsidiaries to issue any Preferred Stockshares of preferred stock; provided, however, that the Company or any Guarantor may incur Indebtedness at any time prior and may permit a Restricted Subsidiary to January 1, 2009 incur Indebtedness if the Company's Consolidated Leverage Ratio at the time of such incurrence and after giving effect thereto the incurrence of such Indebtedness is less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is would be less than 6.0 to 1.0.
. The foregoing limitations will not apply to (b) So long as no Default would be caused thereby, Section 4.09(a) shall not prohibit the incurrence or issuance of any of the following (collectively, "PERMITTED DEBT"):
(i) the incurrence by the Company of Indebtedness under Credit Facilities (and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) in an aggregate principal amount at any one time outstanding pursuant to this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary of the Company to permanently repay any such Indebtedness pursuant to Section 4.10;
(ii) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture;
(iv) the incurrence 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, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $60.0 million at any time outstanding;
(va) the incurrence by the Company or any Restricted Subsidiary of Senior Bank Debt in an aggregate amount not to exceed $25.0 million at any one time outstanding, (b) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees, (c) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness, (d) the issuance by the Company of the Notes, (e) the incurrence by the Company and its Restricted Subsidiaries of Capital Lease Obligations and/or additional Indebtedness constituting purchase money obligations up to an aggregate of $2.5 million at any one time outstanding, provided that the Liens securing such Indebtedness constitute Permitted Liens, (f) the incurrence of Indebtedness between (i) the Company and its Restricted Subsidiaries and (ii) the Restricted Subsidiaries, (g) Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding, (h) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness arising out of letters of credit, performance bonds, surety bonds and bankers' acceptances incurred in the ordinary course of business up to an aggregate of $2.0 million at any one time outstanding, (i) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness consisting of guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, and (j) the incurrence by the Company and its Restricted Subsidiaries of Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to repay, redeem, defease, extend, refinance, renew, replace or refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture referred to be incurred under this Section 4.09(a) or in clauses (ii), (iii), (iv), (v) or (xii) of this Section 4.09(b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries; provided, however, that:
(a) if the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a Guarantor, such Indebtedness must be unsecured and 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 Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory notethrough (e) above, unless the obligor under such Indebtedness is the Company or 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 Company or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a 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 (vij);
(vii) the issuance of shares of Preferred Stock by any of the Company's Restricted Subsidiaries to the Company or to a Guarantor; provided that (i) any subsequent issuance or transfer of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not permitted by this clause (vii);
(viii) the Guarantee by the Issuers or any of the 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;
(ix) the incurrence of any Monetization Indebtedness;
(x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or
(xii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xii), not to exceed $50.0 million; provided that the aggregate principal amount (or accreted value, as applicable) of Indebtedness of all Restricted Subsidiaries of the Company that are not Guarantors incurred pursuant to this clause (xii), together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not at any time exceed $25.0 million. For purposes of determining compliance with this Section 4.09, in the event that any proposed 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 Section 4.09(a), the Company shall be permitted to classify at the time of its incurrence such item of Indebtedness in any manner that complies with this Section 4.09. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued under this Indenture shall be deemed to have been incurred on such date in reliance on the exception provided by clause (i).
Appears in 1 contract
Sources: Indenture (Iron Mountain Inc /De)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, incur any Indebtedness (including Acquired Debt), and the Company shall not permit any of its Restricted Subsidiaries to issue any Preferred Stockpreferred stock; provided, however, that the Company or any Subsidiary Guarantor may incur Indebtedness at any time prior to January 1, 2009 if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 7.0 to 1.0 and, at any time on or after January 1, 2009Indebtedness, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 5.0 to 1.0.
(b) So long as no Default default would be caused thereby, Section 4.09(a) shall will not prohibit the incurrence or issuance of any of the following items of Indebtedness (collectively, "PERMITTED DEBT"):
(i) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness under Credit Facilities (and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) in an aggregate principal amount at any one time outstanding pursuant to this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 million, 200.0 million less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any of its Restricted Subsidiary of the Company Subsidiaries to permanently repay any such Indebtedness incurred pursuant to this clause (1) (and, in the case of any revolving credit Indebtedness, to effect a corresponding commitment reduction thereunder) pursuant to Section 4.10; provided that the aggregate principal amount of Indebtedness of all Restricted Subsidiaries of the Company that are not Guarantors incurred pursuant to this clause (i) shall not at any one time exceed $50.0 million;
(ii) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Issuers Company and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this IndentureIndenture and the Exchange Notes and the related Note Guarantees to be issued pursuant to the Registration Rights Agreement;
(iv) the incurrence 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, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $60.0 million at any time outstanding;
(v) the incurrence by the Company or any Restricted Subsidiary of the Company of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany IndebtednessIndebtedness that was not in existence on the date of this Indenture) that was permitted by this Indenture to be incurred under this Section 4.09(a) or clauses (iiSection 4.09(b)(ii), (iii), (iv), (v) or (xii) of this Section 4.09(bviii);
(viv) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries; provided, however, that:
(a) if the Company or any Subsidiary Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or owed to a Restricted Subsidiary other than a Subsidiary Guarantor, such Indebtedness must be unsecured and and, if such Indebtedness did not result from treasury transactions in the ordinary course of business consistent with the Company's past practice, 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 the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or a Guarantor; and
(i) any subsequent issuance or transfer of Equity Interests in a Restricted Subsidiary formed after the date of this Indenture that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a 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 (viSection 4.09(b)(v);; and
(viic) the issuance of shares of Preferred Stock by any of the Company's Restricted Subsidiaries Indebtedness owed to the Company or to a Guarantor; provided that any Subsidiary Guarantor must be evidenced by an unsubordinated promissory note, unless (i) any subsequent issuance or transfer of any Equity Interests that results in the obligor under such Preferred Stock being held by a Person other than Indebtedness is the Company or a Guarantor and or (ii) any sale such intercompany note is used to finance a Restricted Subsidiary's working capital or other transfer of any such Preferred Stock to a Person that is not either operating cash requirements, consistent with the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not permitted by this clause (vii)Company's past practice;
(viiivi) the Guarantee by the Issuers Company or any of the 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;
(ix) the incurrence of any Monetization Indebtedness;
(xvii) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;Physician Support Obligations; and
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or
(xiiviii) the incurrence by the Company or any of its Restricted Subsidiaries Subsidiary Guarantor 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 (xiiSection 4.09(b)(viii), not to exceed $50.0 million; provided that the aggregate principal amount (or accreted value, as applicable) of Indebtedness of all Restricted Subsidiaries of the Company that are not Guarantors incurred pursuant to this clause (xii), together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not at any time exceed $25.0 million. For purposes of determining compliance with this Section 4.09, 4.09 in the event that any proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (iSections 4.09(b)(i) through (xiiviii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company shall be permitted to classify at on the time date of its incurrence such item of Indebtedness in any manner that complies with this Section 4.09. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued under this Indenture shall be deemed to have been incurred on such date in reliance on the exception provided by Section 4.09(b)(i). In addition, any Indebtedness originally classified as incurred pursuant to Sections 4.09(b)(ii) through (viii) above may later be reclassified by the Company such that it will be deemed as having been incurred pursuant to another of such clauses to the extent that such reclassified Indebtedness could be incurred pursuant to such new clause of Sections 4.09(b)(ii) through (i)viii) at the time of such reclassification.
(c) Notwithstanding any other provision of this Section 4.09, the maximum amount of Indebtedness that may be incurred pursuant to this Section 4.09 shall not be deemed to be exceeded, with respect to any outstanding Indebtedness due solely to the result of fluctuations in the exchange rates of currencies.
(d) The Company shall not incur any Indebtedness that is subordinate or junior in right of payment to any other Indebtedness of the Company unless it is subordinate or junior in right of payment to the Notes to the same extent. No Subsidiary Guarantor shall incur any Indebtedness that is subordinate or junior in right of payment to any other Indebtedness of such Subsidiary Guarantor unless it is subordinate or junior in right of payment to such Subsidiary Guarantor's Note Guarantee to the same extent.
Appears in 1 contract
Sources: Indenture (Venture Holdings, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, incur create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), ) and the Company shall not permit any of its Restricted Subsidiaries to issue any Preferred Stockshares of preferred stock; provided, however, that the Company or any Guarantor may incur Indebtedness at any time prior and may permit a Restricted Subsidiary to January 1, 2009 incur Indebtedness if the Company's Consolidated Leverage Ratio at the time of such incurrence and after giving effect thereto the incurrence of such Indebtedness is Leverage Ratio would be less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 6.5 to 1.0.. The foregoing limitations shall not apply to:
(b) So long as no Default would be caused thereby, Section 4.09(a) shall not prohibit the incurrence or issuance of any of the following (collectively, "PERMITTED DEBT"):
(i) the incurrence by the Company of Indebtedness under Credit Facilities (and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) in an aggregate principal amount at any one time outstanding pursuant to this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary of the Company to permanently repay any such Indebtedness pursuant to Section 4.10;
(ii) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture;
(iv) the incurrence 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, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $60.0 million at any time outstanding;
(v1) the incurrence by the Company or any Restricted Subsidiary of Senior Bank Debt in an aggregate amount not to exceed $100.0 million at any one time outstanding;
(2) the issuance by the Company of the Company Guarantee or by the Restricted Subsidiaries of Subsidiary Guarantees of the Notes;
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(4) the issuance by the Issuer of the Notes;
(5) the incurrence by the Company and its Restricted Subsidiaries of Capital Lease Obligations and/or additional Indebtedness constituting purchase money obligations up to an aggregate of $5.0 million at any one time outstanding, provided that the Liens securing such Indebtedness constitute Permitted Liens;
(6) the incurrence of Indebtedness between (i) the Company and its Restricted Subsidiaries and (ii) the Restricted Subsidiaries;
(7) 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 the Indenture to be outstanding;
(8) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness arising out of letters of credit, performance bonds, surety bonds and bankers’ acceptances incurred in the ordinary course of business up to an aggregate of $5.0 million at any one time outstanding;
(9) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness consisting of guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock; and
(10) the incurrence by the Company and its Restricted Subsidiaries of Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to repay, redeem, defease, extend, refinance, renew, replace or refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture referred to be incurred under this Section 4.09(a) or in clauses (ii)2) through (5) above, (iii), (iv), (v) or (xii) of this Section 4.09(b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries; provided, however, that:
(a) if the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a Guarantor, such Indebtedness must be unsecured and 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 Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or 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 Company or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a 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 (vi);
(vii10) the issuance of shares of Preferred Stock by any of the Company's Restricted Subsidiaries to the Company or to a Guarantor; provided that (i) any subsequent issuance or transfer of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not otherwise permitted by this clause (vii);
(viii) the Guarantee by the Issuers or any of the 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;
(ix) the incurrence of any Monetization Indebtedness;
(x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or
(xii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xii), not to exceed $50.0 million; provided that the aggregate principal amount (or accreted value, as applicable) of Indebtedness of all Restricted Subsidiaries of the Company that are not Guarantors incurred pursuant to this clause (xii), together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not at any time exceed $25.0 million. For purposes of determining compliance with this Section 4.09, in the event that any proposed 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 Section 4.09(a), the Company shall be permitted to classify at test set forth in the time first paragraph of its incurrence such item of Indebtedness in any manner that complies with this Section 4.09. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued under this Indenture shall be deemed to have been incurred on such date in reliance on the exception provided by clause (i)4.9.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall Loan Parties will not, and shall will not permit any of its their Restricted Subsidiaries to, directly or indirectly, incur create, incur, issue, assume, guarantee or otherwise be or become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and the Company shall Loan Parties will not issue any Disqualified Stock and will not permit any of its their Restricted Subsidiaries to issue any Preferred shares of Disqualified Stock; provided, however, that the Company or any Guarantor may incur Indebtedness at any time prior to January 1, 2009 if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 to 1.0.
(b) So long as no Default would be caused thereby, The provisions of Section 4.09(a4.9(a) shall hereof will not prohibit the incurrence or issuance of any of the following items of Indebtedness (collectively, "PERMITTED DEBT"“Permitted Debt”):
(i) the incurrence by the Company Borrower and any Guarantor of Indebtedness under Credit Facilities (and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) in an aggregate principal amount at any one time outstanding pursuant to this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company Borrower and its Restricted Subsidiaries thereunder) at any one time outstanding under this clause (i) not to exceed $950.0 61.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary of the Company to permanently repay any such Indebtedness pursuant to Section 4.10;.
(ii) the incurrence by the Borrower and its Restricted Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Issuers Borrower and the Guarantors of Indebtedness represented by the Notes Term Loans and the related Note Guarantees to be issued on the date of this IndentureGuarantees, as well as any other Indebtedness incurred in accordance with Section 1.12;
(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 obligations, in each case, incurred within 360 days of the acquisition or completion of construction or installation for the purpose of financing all or any part of the purchase price or cost of construction design, construction, installation or improvement of property, plant or equipment used in the business of the Company Borrower or such any of its Restricted SubsidiarySubsidiaries, or Attributable Debt relating to a sale and leaseback transaction, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance refinance, replace, defease or replace discharge any Indebtedness incurred pursuant to this clause (iv), not to exceed $60.0 15.0 million at any time outstanding;
(v) the incurrence by the Company Borrower or any of its Restricted Subsidiary of the Company Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance refinance, replace, defease or replace discharge any Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture Agreement to be incurred under this Section 4.09(a) or clauses (ii), (iii), (iv), (v) or (xiixv) of this Section 4.09(b4.9(b);
(vi) the incurrence by the Company Borrower or any of its Restricted Subsidiaries of intercompany Indebtedness owing to between or among the Borrower and held by the Company or any of its Restricted Subsidiaries; provided, however, that:
(aA) if the Company Borrower or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that the payee is not the Company, Co-Issuer Corp. Borrower or a Guarantor, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the NotesTerm Loans, in the case of the CompanyBorrower, or the Note GuaranteeGuaranteed Obligations, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or a Guarantor; and
(iB) (1) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company Borrower or a Restricted Subsidiary thereof of the Borrower and (ii2) any sale or other transfer of any such Indebtedness to a Person that is not either the Company Borrower or a Restricted Subsidiary thereofof the Borrower, shall 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 issuance of shares of Preferred Stock by any of the Company's Loan Parties’ Restricted Subsidiaries to the Company Borrower or to a Guarantorany Guarantor of shares of preferred stock; provided that provided, however, that:
(iA) any subsequent issuance or transfer of any Equity Interests that results in any such Preferred Stock preferred stock being held by a Person other than the Company Borrower or a Guarantor and Guarantor; and
(iiB) any sale or other transfer of any such Preferred Stock preferred stock to a Person that is not either the Company Borrower or a Guarantor shall Guarantor, will be deemed, in each case, to constitute an issuance of such shares of Preferred Stock preferred stock by such Restricted Subsidiary that was not permitted by this clause (vii);
(viii) the Guarantee incurrence by the Issuers Borrower or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business;
(ix) the guarantee by the Borrower or any of the Guarantors of Indebtedness of the Company Borrower or a Restricted Subsidiary of the Company Borrower that was permitted to be incurred by another provision of this Section 4.09;
(ix) 4.9; provided that if the incurrence of any Monetization IndebtednessIndebtedness being guaranteed is subordinated to or pari passu with the Term Loans, then the Guarantee shall be subordinated or be pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(x) the incurrence by the Company Borrower or any of its Restricted Subsidiaries of Indebtedness to in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance and surety bonds in the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereofordinary course of business;
(xi) Indebtedness arising from agreements of the issuance Borrower or a Restricted Subsidiary of up to 3,500,000 shares the Borrower providing for indemnification, adjustment of AMC Preferred Stockpurchase price, earn-out or other similar obligations, in each case, incurred or assumed in connection with the disposition of any Preferred Stock issued in exchange therefor business, assets or issued to redeema Restricted Subsidiary of the Borrower, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the foregoing as a dividendpurpose of financing such acquisition; orprovided that the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the Borrower and its Restricted Subsidiaries in connection with such disposition;
(xii) Indebtedness of the Borrower’s Foreign Subsidiaries in an aggregate principal amount not to exceed $7.5 million at any time outstanding pursuant to this clause (xii);
(xiii) the incurrence by the Company Borrower or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within five Business Days;
(xiv) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness in connection with the repurchase, redemption or other acquisition or retirement of Equity Interests held by any current or former officer, director or employee of Holdings, the Borrower or any of its Restricted Subsidiaries; provided that such repurchase, redemption or other acquisition or retirement is permitted by clause (v) of Section 4.7(b); provided, further that such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Term Loans; and
(xv) the incurrence by the Borrower’s Foreign Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance refinance, replace, defease or replace discharge any Indebtedness incurred pursuant to this clause (xiixv), not to exceed $50.0 million; provided that the aggregate principal amount (or accreted value, as applicable) of Indebtedness of all Restricted Subsidiaries of the Company that are not Guarantors incurred pursuant to this clause (xii), together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not at any time exceed $25.0 22.0 million. For purposes of determining compliance with this Section 4.094.9, in the event that any an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xiixv) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company shall Borrower will be permitted to classify at the time of its incurrence such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.094.9. Indebtedness under the Credit Agreement Facilities outstanding on the date on which Notes are first issued under this Indenture shall Closing Date will be deemed to have been incurred on such date in reliance on the exception provided by clause Section 4.9(b)(i) hereof. 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 4.9; provided, in each such case, that the amount of any such accrual, accretion or payment is included in Fixed Charges of the Borrower as accrued. Notwithstanding any other provision of this Section 4.9, the maximum amount of Indebtedness that the Borrower or any Restricted Subsidiary may incur pursuant to this Section 4.9 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values. The amount of any Indebtedness outstanding as of any date will be:
(i)) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(ii) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(iii) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of
(A) the Fair Market Value of such assets at the date of determination; and
(B) the amount of the Indebtedness of the other Person. The Loan Parties will not incur, and will not permit their Restricted Subsidiaries to incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Loan Parties or their Restricted Subsidiaries unless such Indebtedness is also contractually subordinated in right of payment to the Term Loans and the Guarantees thereof on substantially identical terms; provided, however, that no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Loan Parties or their Restricted Subsidiaries solely by virtue of being unsecured or by virtue of the fact that the holders of secured Indebtedness have entered into intercreditor agreements giving one or more of such holders priority over the other holders in the collateral held by them.
Appears in 1 contract
Sources: Second Lien Term Loan Agreement (Stanadyne Holdings, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, incur create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable with respect to (collectively, "incur") any Indebtedness (including Acquired Debt), ) and the Company shall not permit any of its Restricted Subsidiaries to issue any Preferred Stockshares of preferred stock; provided, however, that the Company or any Guarantor may incur Indebtedness at any time prior and may permit a Restricted Subsidiary to January 1, 2009 incur Indebtedness if the Company's Consolidated Leverage Ratio at the time of such incurrence and after giving effect thereto the incurrence of such Indebtedness is Leverage Ratio would be less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 6.5 to 1.0.. The foregoing limitations shall not apply to:
(b) So long as no Default would be caused thereby, Section 4.09(a) shall not prohibit the incurrence or issuance of any of the following (collectively, "PERMITTED DEBT"):
(i) the incurrence by the Company of Indebtedness under Credit Facilities (and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) in an aggregate principal amount at any one time outstanding pursuant to this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary of the Company to permanently repay any such Indebtedness pursuant to Section 4.10;
(ii) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture;
(iv) the incurrence 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, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $60.0 million at any time outstanding;
(v1) the incurrence by the Company or any Restricted Subsidiary of Senior Bank Debt in an aggregate amount not to exceed $100.0 million at any one time outstanding;
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(4) the issuance by the Company of the Notes;
(5) the incurrence by the Company and its Restricted Subsidiaries of Capital Lease Obligations and/or additional Indebtedness constituting purchase money obligations up to an aggregate of $5.0 million at any one time outstanding, provided that the Liens securing such Indebtedness constitute Permitted Liens;
(6) the incurrence of Indebtedness between (i) the Company and its Restricted Subsidiaries and (ii) the Restricted Subsidiaries;
(7) 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 the Indenture to be outstanding;
(8) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness arising out of letters of credit, performance bonds, surety bonds and bankers' acceptances incurred in the ordinary course of business up to an aggregate of $5.0 million at any one time outstanding;
(9) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness consisting of guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock; and
(10) the incurrence by the Company and its Restricted Subsidiaries of Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to repay, redeem, defease, extend, refinance, renew, replace or refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture referred to be incurred under this Section 4.09(a) or in clauses (ii)2) through (5) above, (iii), (iv), (v) or (xii) of this Section 4.09(b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries; provided, however, that:
(a) if the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a Guarantor, such Indebtedness must be unsecured and 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 Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or 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 Company or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a 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 (vi);
(vii10) the issuance of shares of Preferred Stock by any of the Company's Restricted Subsidiaries to the Company or to a Guarantor; provided that (i) any subsequent issuance or transfer of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not otherwise permitted by this clause (vii);
(viii) the Guarantee by the Issuers or any of the 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;
(ix) the incurrence of any Monetization Indebtedness;
(x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or
(xii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xii), not to exceed $50.0 million; provided that the aggregate principal amount (or accreted value, as applicable) of Indebtedness of all Restricted Subsidiaries of the Company that are not Guarantors incurred pursuant to this clause (xii), together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not at any time exceed $25.0 million. For purposes of determining compliance with this Section 4.09, in the event that any proposed 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 Section 4.09(a), the Company shall be permitted to classify at test set forth in the time first paragraph of its incurrence such item of Indebtedness in any manner that complies with this Section 4.09. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued under this Indenture shall be deemed to have been incurred on such date in reliance on the exception provided by clause (i)4.8.
Appears in 1 contract
Sources: First Supplemental Indenture (Iron Mountain Inc/Pa)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, incur create, incur, issue, assume, Guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and the Company shall will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any Preferred Stock; provided, however, that the Company or any Guarantor may incur Indebtedness at any time prior to January 1, 2009 if the Company's Consolidated Leverage Ratio at the time shares of the incurrence preferred stock. The provisions of such Indebtedness is less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 to 1.0.
(b) So long as no Default would be caused thereby, Section 4.09(a) shall 9.01 hereof will not prohibit the incurrence of, or issuance of prohibit the Company and its Subsidiaries from remaining liable with respect to, any of the following items of Indebtedness (collectively, "PERMITTED DEBT"“Permitted Debt”):
(ia) Existing Debt, excluding the Notes and the Senior Secured Notes;
(b) the incurrence by the Company of Indebtedness under Credit Facilities (and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) in an aggregate principal amount at any one time outstanding pursuant to this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary of the Company to permanently repay any such Indebtedness pursuant to Section 4.10;
(ii) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this IndentureAgreement;
(ivc) the incurrence 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 Senior Secured Notes issued on the date of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred this Agreement pursuant to this clause (iv), not to exceed $60.0 million at any time outstandingthe Senior Note Purchase Agreement;
(vd) the incurrence by the Company or any Restricted Subsidiary of the Company of Permitted Refinancing Indebtedness Debt in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness that is described in Sections 9.01(c) and (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under this Section 4.09(a) or clauses (ii), (iii), (iv), (v) or (xii) of this Section 4.09(bd);
(vie) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing owed to and held by the Company or any of its Restricted Wholly Owned Subsidiaries; provided, however, that:
(ai) if the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a GuarantorIndebtedness, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations obligations with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor;
(bii) Indebtedness owed to in each case where the Company or any Guarantor must be evidenced by an unsubordinated promissory noteis the creditor, unless the obligor under such Indebtedness is in compliance with Section 6.1(b)(v)(B) of the Senior Note Purchase Agreement;
(iii) the following will be deemed, in each case, to constitute an incurrence of Indebtedness by the Company or one of its Subsidiaries, as the case may be, that was not permitted by this Section 9.01(e):
(A) any subsequent issuance or transfer of Equity Interests that result in any Indebtedness originally incurred pursuant to this Section 9.01(e) being held by a Person other than the Company or a GuarantorSubsidiary thereof, and
(B) any sale or other transfer of any Indebtedness originally incurred pursuant to this Section 9.01(e) to a Person that is not either the Company or a Wholly Owned Subsidiary thereof,
(f) the issuance by any of the Company’s Subsidiaries to the Company or to any of its Wholly Owned Subsidiaries of shares of preferred stock; andprovided, 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 9.01(f):
(i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness preferred stock originally issued pursuant to this Section 9.01(f) being held by a Person other than the Company or a Restricted Wholly Owned Subsidiary thereof and of the Company; and
(ii) any sale or other transfer of any such Indebtedness preferred stock originally issued pursuant to this Section 9.01(f) to a Person that is not either the Company or a Restricted Wholly-Owned Subsidiary thereof, shall be deemed, in each case, to constitute an of the Company;
(g) the incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as any of its Subsidiaries of Hedging Obligations in the case may be, that was not permitted by this clause (vi)ordinary course of business;
(vii) the issuance of shares of Preferred Stock by any of the Company's Restricted Subsidiaries to the Company or to a Guarantor; provided that (i) any subsequent issuance or transfer of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not permitted by this clause (vii);
(viiih) the Guarantee by the Issuers Company or any of the Guarantors its Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Section 4.099.01; provided, that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the Guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(ix) the incurrence of any Monetization Indebtedness;
(xi) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance and surety bonds in the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereofordinary course of business;
(xij) the issuance incurrence by the Company of up to 3,500,000 shares of AMC Preferred Stock, any Indebtedness represented by the Series A Preferred Stock issued in exchange therefor and Series B Preferred Stock outstanding or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividendClosing Date; orand
(xiik) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within five Business Days. The accrual of interest, the accretion or amortization of original issue discount on any 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 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 $50.0 million; provided that the aggregate principal amount (or accreted value, as applicable) form of Indebtedness of all Restricted Subsidiaries additional shares of the Company that are not Guarantors incurred pursuant to this clause (xii), together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, same class of Disqualified Stock shall not at any time exceed $25.0 million. For purposes of determining compliance with this Section 4.09, in the event that any proposed 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 Section 4.09(a), the Company shall be permitted to classify at the time of its incurrence such item of Indebtedness in any manner that complies with this Section 4.09. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued under this Indenture shall be deemed to have been incurred on such date in reliance on the exception provided by clause (i)be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 9.01.
Appears in 1 contract
Sources: Securities Purchase Agreement (Ign Entertainment Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) 3.1 The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, incur create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”, and provided that, for the avoidance of doubt, no Indebtedness shall be deemed to have been “incurred” merely on the basis that an unutilised commitment with respect to Indebtedness has been made available to the Company) any Indebtedness (including Acquired Debt), and the Company shall will not issue any Disqualified Stock or any shares of preferred stock and will not permit any of its Restricted Subsidiaries to issue any Preferred Stock; provided, however, that the Company Disqualified Stock or any Guarantor may incur Indebtedness at any time prior to January 1, 2009 if the Company's Consolidated Leverage Ratio at the time shares of the incurrence of such Indebtedness is less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 to 1.0preferred stock.
(b) So long as no Default would be caused thereby, Section 4.09(a) shall 3.2 Paragraph 3.1 of this Schedule will not prohibit the incurrence or issuance of any of the following items of Indebtedness by the Company or any Restricted Subsidiary (collectively, "PERMITTED DEBT"“Permitted Debt”):
(i) 3.2.1 the incurrence by the Company and any Restricted Subsidiary of Indebtedness under any Finance Document;
3.2.2 the incurrence by the Company and its Restricted Subsidiaries of (a) Indebtedness listed on the Existing Indebtedness Schedule and (b) (only until and including the first Business Day following the Closing Date) the Existing Debt;
3.2.3 the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness and letters of credit under Credit Facilities (and including the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereofRevolving Credit Facility Agreement) in an aggregate principal amount at any one time outstanding pursuant to under this clause (i) paragraph 3.2.3 (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 £75.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary of the Company to permanently repay any such Indebtedness pursuant to Section 4.10;
(ii) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture;
(iv) 3.2.4 the incurrence 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, :
(a) incurred for the purpose of financing (whether prior to or within 270 days after) all or any part of the purchase price or cost of construction design, construction, installation or improvement of property, plant or equipment (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets) or other assets used or useful in the business of the Company or such any of its Restricted SubsidiarySubsidiaries, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance refinance, replace, defease or replace discharge any Indebtedness incurred pursuant to this clause sub- paragraph (iva), not to exceed the greater of £20 million and 27 per cent. of LTM Consolidated EBITDA at any time outstanding; or
(b) incurred in connection with Soho Farmhouse Rhinebeck (or such other name for a Soho Farmhouse in the Rhinebeck, New York area) in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this sub-paragraph (b), not to exceed $60.0 220 million at any time outstanding;.
(v) 3.2.5 the incurrence by the Company or any of its Restricted Subsidiary of the Company Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance refinance, replace, defease or replace discharge any Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture Schedule to be incurred under this Section 4.09(a) paragraph 3.2.2 or clauses (ii), (iii), (iv), (v) or (xii) of this Section 4.09(b)3.2.5;
(vi) 3.2.6 the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by between or among the Company or and any of its Restricted Subsidiaries; provided, however, that:
(a) if (x) the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a Guarantor, such Indebtedness must be unsecured and 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 Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness borrower is the Company or a Guarantor and the payee is not the Company or a Guarantor, (y) the aggregate amount of the Indebtedness owed by such borrower to such payee is GBP 1,000,000 or more and (z) such Indebtedness is (or will be) outstanding for more than 10 Business Days, the relevant payee shall accede to the Intercreditor Agreement as an Intra-Group Lender; 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 Company or a Restricted Subsidiary thereof of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary thereof, shall of the Company will 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 (vi)paragraph 3.2.6;
(vii) 3.2.7 the issuance of shares of Preferred Stock by any of the Company's Restricted Subsidiaries to the Company or to a Guarantorany of its Restricted Subsidiaries of shares of preferred stock; provided that provided, however, that:
(ia) any subsequent issuance or transfer of any Equity Interests that results in any such Preferred Stock preferred stock being held by a Person other than the Company or a Guarantor and Restricted Subsidiary of the Company; and
(iib) any sale or other transfer of any such Preferred Stock preferred stock to a Person that is not either the Company or a Guarantor shall Restricted Subsidiary of the Company, will be deemed, in each case, to constitute an issuance of such shares of Preferred Stock preferred stock by such Restricted Subsidiary that was not permitted by this clause (vii)paragraph 3.2.7;
(viii) 3.2.8 the Guarantee incurrence by the Issuers Company or any of its Restricted Subsidiaries of Hedging Obligations in connection with Indebtedness otherwise permitted to be incurred by this Agreement or otherwise in the Guarantors ordinary course of business;
3.2.9 the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Section 4.09paragraph 3 (Incurrence of Indebtedness and Issuance of Preferred Stock) (other than, for the avoidance of doubt, paragraph 3.2.19); provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Indebtedness under the Finance Documents, then the guarantee of such Indebtedness shall be subordinated or pari passu to the Indebtedness under the Finance Documents, as applicable, to the same extent as the Indebtedness being guaranteed;
(ix) the incurrence of any Monetization Indebtedness;
(x) 3.2.10 the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, bids and performance or surety bonds in the ordinary course of business and, in any such case, any reimbursement obligations in connection therewith;
3.2.11 the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from the honouring 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 of incurrence;
3.2.12 arising under any local facilities (including any overdraft, working capital facility, other bilateral financing or asset backed loan) incurred by any Restricted Subsidiary, provided that:
(a) such Restricted Subsidiary has incurred Indebtedness under such local facility in a jurisdiction where the proceeds of such local facility cannot be on-lent to the extent Company or any other Restricted Subsidiary (due to local law, tax or other regulatory or legal restrictions) and the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any recourse of the foregoing as a dividendcreditor of such local facility is limited to such Restricted Subsidiary only; or
(xiib) the aggregate principal amount of all such local facilities outstanding at any time (other than those incurred pursuant to paragraph (a) above) shall not exceed the greater of £12.5 million and 17 per cent. of LTM Consolidated EBITDA;
3.2.13 the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company and any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each other than an obligation for money borrowed) and other customary non-recourse guarantees and environmental indemnities or guarantees of lease and/or rental obligations in the ordinary course of business;
3.2.14 the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness consisting of (A) the financing of insurance premiums, (B) take-or-pay obligations contained in supply arrangements or (C) deferred compensation or equity-based compensation to current or former officers, directors, consultants, advisors or employees thereof (other than Permitted Holders), in each case in the ordinary course of business;
3.2.15 the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness or other Obligations arising from agreements of the Company or any of its Restricted 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 Capital Stock of a Subsidiary, provided that the maximum aggregate liability in respect of all such Indebtedness (or other Obligations) shall at no time exceed the gross proceeds, including the Fair Market Value of 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 Company and its Restricted Subsidiaries in connection with such disposition;
3.2.16 Indebtedness, Disqualified Stock or preferred stock of (x) the Company or any of its Restricted Subsidiaries or (y) a Subsidiary incurred and outstanding or committed to be incurred on or prior to the date on which such Subsidiary was acquired by the Company or any of its Restricted Subsidiaries or merged, consolidated or amalgamated with or into the Company or any of its Restricted Subsidiaries in accordance with the terms of this Schedule (other than Indebtedness incurred in contemplation of, or in connection with, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary of, or was otherwise acquired by, the Company or a Restricted Subsidiary); provided, however, that such Indebtedness is discharged within six Months of the acquisition of such Subsidiary;
3.2.17 Indebtedness incurred on behalf of, or representing guarantees of Indebtedness of, Joint Ventures of the Company or any Restricted Subsidiary; provided, however, that the only recourse on such Indebtedness (including any guarantee of Indebtedness but excluding in all cases lease guarantees, cost overrun guarantees and similar guarantees where the relevant guarantees and arrangements guaranteed by those guarantees have, in each case, been entered into on a customary arm’s length basis and otherwise in compliance with paragraph 7 (Transactions with Affiliates), which guarantees may be incurred under this paragraph by the Company or any Restricted Subsidiary with respect to any Joint Venture on a recourse basis) is limited to the Company’s or such Restricted Subsidiary’s Equity Interests in (and/or receivables owed to it by) the related Joint Venture;
3.2.18 the incurrence by the Company or any of its Restricted Subsidiaries of one or more letter of credit facilities and the issuance of letters of credit thereunder (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) in an aggregate principal amount at any time outstanding not to exceed the greater of £8.25 million and 11 per cent. of LTM Consolidated EBITDA;
3.2.19 the incurrence by any SPV Entity of any SPV Indebtedness that is Non-Recourse Debt; provided that the Indebtedness of any Miami SPV (the “Miami Debt”) shall be permitted under this paragraph 3.2.19 and shall as a result be deemed to be SPV Indebtedness for the purposes of this Agreement notwithstanding that it is not Non- Recourse Debt provided that (A) the recourse in respect of the Miami Debt is limited to a guarantee provided by US AcquireCo, Inc. on substantially the same basis as the guarantee extended as of the date of this Agreement (but this proviso (A) shall not prohibit any increase to the amount of the Miami Debt (or any increase to the amount of the guarantee thereof, pro rata to any increase to the Miami Debt) following the date of this Agreement), (B) pro forma for any increase, the Miami Loan to Value Ratio does not exceed 80%, and (C) the terms of the Miami Debt do not include any maintenance financial covenant relating to the Company or any member of the Restricted Group (other than any financial covenants relating to any Miami SPV and/or US AcquireCo, Inc.);
3.2.20 the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness (including Acquired Debt) or the issuance by any Restricted Subsidiary of preferred stock, in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance refinance, replace, defease or replace discharge any Indebtedness incurred pursuant to this clause (xii)paragraph 3.2.20, not to exceed $50.0 million; provided that the aggregate principal amount (greater of £37.5 million and 50 per cent. of LTM Consolidated EBITDA;
3.2.21 the incurrence by the Company or accreted value, as applicable) any of Indebtedness of all its Restricted Subsidiaries of Indebtedness arising under any bank guarantee, surety (Bürgschaft) or any other instrument issued by a bank or financial institution in order to comply with the requirements under section 8a of the German Act on Partial Retirement (Altersteilzeitgesetz) or under section 7e of the Fourth Book of the German Social Code (Sozialgesetzbuch IV); and
3.2.22 [Reserved].
3.3 The Company shall not incur, and shall not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Company that are not Guarantors incurred pursuant or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to this clause (xii), together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not at any time exceed $25.0 million. For purposes of determining compliance with this Section 4.09, in the event that any proposed 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 Section 4.09(a), the Company shall be permitted to classify at the time of its incurrence such item of Indebtedness in any manner that complies with this Section 4.09. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued guarantees provided under this Indenture shall Agreement on substantially identical terms; provided, however, that no Indebtedness will be deemed to have been incurred be contractually subordinated in right of payment to any other Indebtedness of the Company solely by virtue of being unsecured or by virtue of being secured on such date a first or junior Lien basis. The Company shall not incur, and shall not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is expressed to rank or ranks as to payment or security so that it is subordinated to any of the Super Senior Liabilities (as defined in reliance on the exception provided by clause Intercreditor Agreement) but are senior to the Pari Passu Liabilities (i)as defined in the Intercreditor Agreement) under this Agreement.
Appears in 1 contract
Sources: Notes Purchase Agreement (Membership Collective Group Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The No Company shall not, and shall not permit any of its Restricted Subsidiaries toEntity will, directly or indirectly, incur create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt)Indebtedness, and the Company shall not permit any of its Restricted Subsidiaries to or issue any Preferred Disqualified Stock; provided, however, that the Company or any Guarantor may incur Indebtedness at any time prior to January 1, 2009 if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 to 1.0.
(b) So long as no Default would be caused thereby, Section 4.09(a) shall not prohibit the incurrence or issuance of except for any of the following items of Indebtedness (collectively, "PERMITTED DEBT"“Permitted Indebtedness”):
(i1) the incurrence by the Company of Indebtedness under the Credit Facilities (and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) Agreement in an aggregate principal amount at any one time outstanding pursuant to under this clause (i1) (with letters Letters of credit Credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 million142.0 million plus any Incremental LC Facility, less and any Replacement Credit Facilities (less, if applicable, any Guarantees issued pursuant to clause (13) below);
(2) the aggregate amount Note Guarantees and guarantees of all Net Proceeds the Note Guarantors of Asset Sales applied by the Company or any Restricted Subsidiary Indebtedness of the Company to permanently repay under the Credit Facilities (including any such Indebtedness pursuant to Section 4.10Incremental LC Facility and any Replacement Credit Facilities);
(ii3) the incurrence of Existing Wildcat Sale Leaseback to the extent constituting Indebtedness;
(iii4) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes and the related (including any Note Guarantees to be issued on the date of this IndentureGuarantee);
(iv5) the incurrence by the Indebtedness of any Project Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations(i) secured equipment or similar financings (where the security interests are incurred, mortgage financings and the Indebtedness secured thereby is created, within 60 days after the acquisition or construction of the relevant property, plant or equipment) 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 design, construction, installation or improvement of property, plant or equipment used in the business of the Company or such Restricted SubsidiaryProject Companies in the ordinary course and (ii) Capital Lease Obligations of any Project Company, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), amount not to exceed $60.0 10.0 million at any time outstanding;
(v6) Indebtedness in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance and surety bonds in the incurrence ordinary course of business;
(7) 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;
(8) contingent obligations arising from indemnities provided under the Financing Documents and the Project Contracts;
(9) obligations of any Project Company under Permitted Commodity Hedge Agreements to the extent constituting Indebtedness;
(10) Indebtedness arising from netting services, overdraft protection, cash management obligations and otherwise in connection with deposit, securities and commodities accounts in the ordinary course of business;
(11) intercompany loans among the Company and/or any of the Project Companies resulting from the flow of funds among the Company Entities, so long as such loans are fully subordinated to the Senior Obligations pursuant to an agreement containing the terms attached as Exhibit F hereto and not secured by any of the Collateral;
(12) unsecured Indebtedness in an aggregate amount at any time outstanding not to exceed $10.0 million; and
(13) any Guaranty by the Company or any Restricted Subsidiary on behalf of a Project Company to secure obligations under a Project Contract related to decommissioning costs for the Company benefit of Permitted Refinancing Indebtedness in exchange fora Governmental Authority, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under this Section 4.09(a) or clauses (ii), (iii), (iv), (v) or (xii) of this Section 4.09(b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries; provided, however, that:
(a) if the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a Guarantor, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash extent such credit support is required by applicable law, up to a maximum aggregate amount at any time equal to an amount that, when combined with the aggregate amount of all Obligations with respect to outstanding LC Loans and the Notes, in the case available amount of the Company, or the Note Guarantee, in the case all outstanding Letters of a Guarantor;Credit (but excluding LC Loans and Letters of Credit under any Incremental LC Facility) does not exceed $132.0 million.
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or 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 Company or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a 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 (vi);
(vii) the issuance of shares of Preferred Stock by any of the Company's Restricted Subsidiaries to the Company or to a Guarantor; provided that (i) any subsequent issuance or transfer of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not permitted by this clause (vii);
(viii) the Guarantee by the Issuers or any of the 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;
(ix) the incurrence of any Monetization Indebtedness;
(x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or
(xii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xii), not to exceed $50.0 million; provided that the aggregate principal amount (or accreted value, as applicable) of Indebtedness of all Restricted Subsidiaries of the Company that are not Guarantors incurred pursuant to this clause (xii), together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not at any time exceed $25.0 million. For purposes of determining compliance with this Section 4.094.07, in the event that any proposed an item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt Indebtedness described in clauses (i1) through (xii12) of paragraph (a) above, or is entitled to be incurred pursuant to the first paragraph of this Section 4.09(a)4.07, the Company shall will be permitted to classify at the time of its incurrence and later reclassify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.094.07 and will be entitled to divide the amount and type of such Indebtedness among more than one of such clauses under this Section 4.07. Indebtedness under the Credit Agreement Facilities outstanding on the date on which Notes are first issued and authenticated under this Indenture shall will initially be deemed to have been incurred on such date in reliance on the exception provided by clause (i)1) of the definition of Permitted Indebtedness. All Indebtedness shall be denominated in U.S. dollars.
(c) The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(3) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date of determination; and
(B) the amount of the Indebtedness of the other Person.
Appears in 1 contract
Sources: Indenture (Exelon Generation Co LLC)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, incur create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and the Company shall will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries Subsidiary to issue any Disqualified Stock or Preferred Stock; provided, however, that the Company or any Guarantor may incur Indebtedness at any time prior to January 1, 2009 if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 to 1.0.
(b) So long as no Default would be caused thereby, Section 4.09(a) shall will not prohibit the incurrence or issuance of any of the following items of Indebtedness or the issuance of Disqualified Stock or Preferred Stock, as set forth below (collectively, "PERMITTED DEBT"“Permitted Debt”):
(i) the incurrence by the Company and any Restricted Subsidiary of Indebtedness under one or more Credit Facilities (and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) in an aggregate principal amount at any one time outstanding pursuant to under this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 millionthe sum of the principal amount outstanding and revolving commitments under the Exchange Credit Agreement and the 2017 Credit Agreement on the Issue Date, less after giving effect to the aggregate Refinancing Transactions, and with such amount being permanently reduced dollar-for-dollar by the principal amount of all Net Proceeds of Asset Sales applied by any Indebtedness outstanding under the Company or any Restricted Subsidiary Exchange Credit Agreement as of the Company to Issue Date that is permanently repay any such Indebtedness prepaid pursuant to Section 4.10any mandatory prepayment provisions thereunder;
(ii) the incurrence by the Company and any Restricted Subsidiary of Existing Indebtedness;
(iii) the incurrence by the Issuers and the Guarantors Company of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenturehereof and any Guarantees thereof by any Guarantor;
(iv) the incurrence by the Company or any of its Restricted Subsidiaries 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, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $60.0 40.0 million at any one time outstanding;
(v) the incurrence by the Company or any Restricted Subsidiary of the Company Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under this Section 4.09(a) or clauses (ii), (iii), (iv), (v) or (xiixvi) of this Section 4.09(b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries Subsidiary of intercompany Indebtedness owing to and held by between or among the Company or and any of its Restricted SubsidiariesSubsidiary; provided, however, that:
(a1) if the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a GuarantorIndebtedness, such Indebtedness must be unsecured and 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 Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or a Guarantor; and
(2) (i) 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 Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary thereof, shall Subsidiary; will 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 (vi);
(vii) the issuance incurrence by the Company or any Restricted Subsidiary of shares Hedging Obligations that are incurred for the purpose of Preferred Stock fixing, hedging or swapping interest rate risk with respect to any Indebtedness that is permitted by any the terms of this Indenture to be outstanding or for hedging foreign currency exchange risk, in each case to the extent the Hedging Obligations are incurred in the ordinary course of the Company's Restricted Subsidiaries to the Company or to a Guarantor; provided that (i) ’s financial management and not for any subsequent issuance or transfer of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not permitted by this clause (vii)speculative purpose;
(viii) the Guarantee by the Issuers Company or any of the Guarantors Restricted Subsidiary 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;
(ix) 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 any Monetization IndebtednessIndebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09;
(x) the incurrence by the Company or any Restricted Subsidiary of its Indebtedness, including Indebtedness represented by letters of credit for the account of the Company or any Restricted Subsidiary, incurred in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Company or any Restricted Subsidiary in the ordinary course of business; provided that the underlying obligation to perform is that of the Company or the Restricted Subsidiaries and not that of Indebtedness to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy Company’s Unrestricted Subsidiaries; and discharge this Indenture pursuant to Article 11 hereofprovided further, that such underlying obligation is not in respect of borrowed money;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or
(xii) the incurrence by the Company or any of its Restricted Subsidiaries Guarantor of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any one time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xi), not to exceed $15.0 million at any one time outstanding;
(xii) the incurrence by the Company or any Restricted Subsidiary of Indebtedness, including but not limited to Indebtedness represented by letters of credit for the account of the Company or any Restricted Subsidiary, arising from agreements of the Company or a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or Equity Interests of the Company or a Restricted Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Equity Interests for the purpose of financing such acquisition;
(xiii) the incurrence by the Company or any Restricted Subsidiary of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five Business Days of incurrence;
(xiv) the issuance of Preferred Stock of a Restricted Subsidiary to the Company that is pledged as Collateral, provided that any subsequent transfer that results in such Preferred Stock being held by a Person other than the Company or a Guarantor will be deemed to constitute an issuance of Preferred Stock not permitted by this clause (xiv);
(xv) the incurrence of Acquired Debt (but not any Indebtedness incurred in connection with, or in contemplation of such other Person merging with or into, or becoming a Subsidiary of, the Company) in a transaction that would constitute a Permitted Acquisition; provided, however, that (i) such Person either merges with or into the Company or becomes a Guarantor pursuant to the terms and conditions set forth in this Indenture, (ii) on the date such Person becomes a Subsidiary or is acquired by, or merges with or into, the Company and after giving pro forma effect thereto, the Total Leverage Ratio would be no greater than such ratio for the Company and the Restricted Subsidiaries immediately prior to such transaction and (iii) the aggregate principal amount of such Indebtedness incurred under this clause (xv), including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness, shall not exceed $37.5 million at any one time outstanding;
(xvi) Guarantees by the Company or any Restricted Subsidiary of Indebtedness of any Unrestricted Subsidiary; provided that the aggregate principal amount of such Guarantees of Indebtedness of any Unrestricted Subsidiary shall not exceed $15.0 million at any one time outstanding;
(xvii) the incurrence by the Company and any Restricted Subsidiary of unsecured Indebtedness (i) for borrowed money or (ii) incurred in respect of letters of credit facilities of the Company or any Restricted Subsidiary; provided that (a) any Indebtedness incurred under this clause (xvii) will have a scheduled maturity date that is later than the scheduled maturity date of the Notes and (b) the Total Leverage Ratio immediately after giving pro forma effect to the incurrence of such Indebtedness will be no greater than the lesser of (x) the Total Leverage Ratio immediately before giving pro forma effect to the incurrence of such Indebtedness plus 1.25 to 1.00 and (y) 5.00 to 1.00;
(xviii) the incurrence by the Company and any Restricted Subsidiary of additional Indebtedness in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xviii), not to exceed (a) $215.0 million of Indebtedness at any one time outstanding, plus (b) an additional $125.0 million if the First Lien Secured Leverage Ratio, immediately after giving pro forma effect to the incurrence of such Indebtedness, would be no greater than 2.00x (plus, in the case of any Permitted Refinancing Indebtedness, the Additional Refinancing Amount); provided that availability under this clause (xviii)(b) will be reduced by up to $50.0 million, on a dollar-for-dollar basis, on account of any prepayment or repayment of the 2023 Notes or the 2024 Notes in excess of $200.0 million from (x) cash from operations and (y) cash proceeds from the 2017 Credit Agreement;
(xix) the incurrence by the Company and any Guarantor of additional Indebtedness that is secured by a Lien that is pari passu with the Notes and the 2028 Public Exchange Notes in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xix), not to exceed $50.0 millionmillion at any one time outstanding; provided that availability under this clause (xix) will be reduced on a dollar-for-dollar basis on account of any Indebtedness incurred pursuant to clause (xxii);
(xx) the incurrence by the Company and any Restricted Subsidiary of Indebtedness to finance the acquisition, construction or improvement of the GEO HQ, Guarantees by the Company or any Restricted Subsidiary of any such Indebtedness, and extensions, renewals and replacements of any such Indebtedness and Guarantees that do not increase the outstanding principal amount thereof; provided that the aggregate principal amount (or accreted value, as applicable) of Indebtedness of all Restricted Subsidiaries of the Company that are not Guarantors incurred pursuant to permitted by this clause (xiixx), together with including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not exceed $50.0 million at any one time outstanding;
(xxi) Indebtedness consisting of obligations under any Permitted Convertible Indebtedness Call Transaction; and
(xxii) the incurrence by the Company and any Guarantor of additional Indebtedness on or before October 15, 2024 that is secured by a Lien on the Collateral that is junior to the 2017 Credit Agreement and the Exchange Credit Agreement and senior to the Notes and the 2028 Public Exchange Notes in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xxii), not to exceed $25.0 million. 1.8 million at any one time outstanding; provided that the holders of such Indebtedness or their Designated Representative shall have become party to the First Lien/Second Lien Intercreditor Agreement.
(c) For purposes of determining compliance with this Section 4.09, :
(i) in the event that any an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xiixxii) aboveof Section 4.09(b) hereof, or is entitled to be incurred pursuant to Section 4.09(a)) hereof, the Company shall be permitted to classify at the time of its incurrence such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.09. ; provided that Indebtedness under the Credit Agreement Agreements outstanding on the date on which Notes (i) are first issued and authenticated under this Indenture shall be deemed to have been incurred on such date in reliance on the exception provided in Section 4.09(b)(i) hereof and may not be reclassified and (ii) any Indebtedness incurred pursuant to Section 4.09(b)(xviii) hereof that constitutes First Lien Secured Obligations shall not be reclassified;
(ii) the principal amount of Indebtedness outstanding under any clause of this Section 4.09 shall be determined after giving effect to the application of proceeds of any such Indebtedness incurred to refund, refinance or replace any such other Indebtedness to the extent proceeds will be used substantially concurrently with such incurrence;
(iii) in connection with the Company or a Restricted Subsidiary’s entry into an instrument containing a binding commitment in respect of any revolving Indebtedness, the Company may elect, pursuant to an Officer’s Certificate delivered to the Trustee, to treat all or any portion of such commitment (any such amount elected until revoked as described below, an “Elected Amount”) under any Indebtedness which is to be incurred (or any commitment in respect thereof) or secured by a Lien, as the case may be, as being incurred as of such election date, and (i) any subsequent incurrence of Indebtedness under such commitment (so long as the total amount under such Indebtedness does not exceed the Elected Amount) shall not be deemed, for purposes of any calculation under this Indenture, to be an incurrence of additional Indebtedness or an additional Lien at such subsequent time, (ii) the Company may revoke an election of an Elected Amount at any time pursuant to an Officer’s Certificate delivered to the Trustee and (iii) for purposes of all subsequent calculations of the First Lien Secured Leverage Ratio and the Total Leverage Ratio, the Elected Amount (if any) shall be deemed to be outstanding, whether or not such amount is actually outstanding, so long as the applicable commitment remains outstanding;
(iv) if Indebtedness originally incurred in reliance upon the First Lien Secured Leverage Ratio or the Total Leverage Ratio under either clause (ixvii) or (xviii) of Section 4.09(b) is being Refinanced under either clause (xvii) or (xviii), as applicable, of Section 4.09(b) and such Refinancing would cause the maximum amount of Indebtedness thereunder to be exceeded at such time, then such Refinancing will nevertheless be permitted thereunder and such Indebtedness will be deemed to have been incurred under either clause (xvii) or (xviii), as applicable, of Section 4.09(b) so long as (x) the Liens, if any, securing such Refinancing Indebtedness have a lien priority equal or junior to the Liens securing the Indebtedness being Refinanced and (y) the principal amount of such Refinancing Indebtedness does not exceed the principal amount of Indebtedness being Refinanced;
(v) notwithstanding any other provision of this Section 4.09, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary 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; and
(vi) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness which is otherwise included in the determination of a particular amount of Indebtedness shall not be included in the determination of such amount of Indebtedness; provided that the Incurrence of the Indebtedness represented by such guarantee or letter of credit, as the case may be, was in compliance with this
Appears in 1 contract
Sources: Indenture (Geo Group Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, incur create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and the Company shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any Preferred Stock; provided, however, that the Company shares of stock or any Guarantor may incur Indebtedness at any time prior to January 1, 2009 if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less other equity interests (other than 7.0 to 1.0 and, at any time on common stock or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 to 1.0other common equity interests).
(b) So long as no Default would be caused thereby, The provisions of Section 4.09(a4.08(a) hereof shall not prohibit the incurrence or issuance of any of the following items of Indebtedness (collectively, "PERMITTED DEBT"“Permitted Debt”):
(i1) the incurrence by the Company of Indebtedness under Credit Facilities (and the incurrence by Co-Issuer Corp. Company of the Notes and the Guarantors of Note Guarantees thereof) in an aggregate principal amount at and any one time outstanding Permitted Refinancing Indebtedness that is incurred to renew, refund, refinance, replace, defease, extend or discharge any other Indebtedness incurred pursuant to this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary of the Company to permanently repay any such Indebtedness pursuant to Section 4.101);
(ii) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture;
(iv2) the incurrence by the Company or any of its Restricted Subsidiaries that are Grantors of intercompany Indebtedness represented by Capital Lease Obligations, mortgage financings between or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of among the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace and/or any Indebtedness incurred pursuant to this clause (iv), not to exceed $60.0 million at any time outstandingof its Subsidiaries that are Grantors;
(v3) the incurrence issuance by the Company or any Restricted Subsidiary of the Company to the Company or to any of Permitted Refinancing Indebtedness in exchange for, its Subsidiaries of shares of stock or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under this Section 4.09(a) or clauses (ii), (iii), (iv), (v) or (xii) of this Section 4.09(b)equity interests;
(vi4) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held Hedging Obligations in the Ordinary Course of Business;
(5) the Guarantee (including by way of co-obligation or assumption) by the Company or any Subsidiary of its Restricted Subsidiaries; provided, however, that:
(a) if the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a Guarantor, such Indebtedness must be unsecured and 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 Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or 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 Company or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a 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 (vi);
(vii) the issuance of shares of Preferred Stock by any of the Company's Restricted Subsidiaries to the Company or to a Guarantor; provided that (i) any subsequent issuance or transfer of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not permitted by this clause (vii);
(viii) the Guarantee by the Issuers or any of the Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company that is a Grantor (including in connection with or in contemplation of a spin-off of the original obligor of the guaranteed or assumed Indebtedness) to the extent that the guaranteed Indebtedness was permitted to be incurred by another provision of this Section 4.094.08; 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 or assumed;
(ix) the incurrence of any Monetization Indebtedness;
(x6) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness or reimbursement obligations in respect of workers’ compensation claims, self-insurance obligations (including reinsurance), bankers’ acceptances, performance bonds and surety bonds in the Ordinary Course of Business (including without limitation in respect of customs obligations, landing fees, taxes, airport charges, overfly rights and any other obligations to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy airport and discharge this Indenture pursuant to Article 11 hereofgovernmental authorities);
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or
(xii7) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in respect of any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing house transfers of funds;
(8) reimbursement obligations in respect of standby or documentary letters of credit or banker’s acceptances;
(9) ordinary course surety and appeal bonds (other than in connection with debt for borrowed money) that do not secure judgments that constitute an Event of Default;
(10) Indebtedness of the Company or any of its Subsidiaries (x) to Credit Card, travel charge or clearing house processors in connection with Credit Card processing, travel charge or clearinghouse services incurred in the Ordinary Course of Business, whether in the form of hold-backs or otherwise and (y) in respect of Credit Card purchase for operations in the Ordinary Course of Business, collectively, in an aggregate amount outstanding at any time not to exceed $5.0 million;
(11) the incurrence of Indebtedness of the Company or any of its Subsidiaries owed to one or more Persons in connection with the financing of insurance premiums in the Ordinary Course of Business;
(12) Indebtedness of the Company or any of its Subsidiaries consisting of customary take-or-pay or like obligations contained in supply, maintenance, repair, power-by-the-hour, overhaul or like agreements entered into in the Ordinary Course of Business;
(13) the incurrence by the Company or any of its Subsidiaries of Aircraft Indebtedness in an aggregate principal amount (or accreted value, as applicable) outstanding 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 $50.0 100.0 million; provided that ;
(14) the incurrence by the Company or any of its Subsidiaries of Permitted Pari Passu Debt in an aggregate principal amount (or accreted value, as applicable) of Indebtedness of all Restricted Subsidiaries of the Company that are not Guarantors incurred pursuant to this clause (xii), together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not outstanding at any time not to exceed $25.0 million. ;
(15) the incurrence of Indebtedness of the Company or any of its Subsidiaries owed to one or more Persons, in an aggregate principal amount outstanding at any time not to exceed $5.0 million, of the following: (a) obligations under Operating Leases (excluding Operating Leases for aircraft), (b) obligations under maintenance deferral agreements, (c) any deferral of pre-delivery payments relating to the purchase of aircraft, (c) any air traffic liability, (d) any payment obligations in connection with health or other types of social security benefits, (f) any payment obligations in connection with lease maintenance return conditions on leased aircraft or (g) any reserves for capital tax obligations and (h) any reserves for obligations under land leases;
(16) the incurrence of Indebtedness of the Company or any of its Subsidiaries owed to one or more Persons as a result of obligations under Operating Leases for aircraft, so long as any Liens related to such Indebtedness are subject and subordinate to the Lien of the Collateral Agent on the Collateral
(17) the incurrence of Indebtedness representing Finance Lease Obligations with respect to Ground Service Equipment and office equipment used in the Ordinary Course of Business, in an aggregate amount outstanding at any time not to exceed $3.0 million; and
(18) any Indebtedness listed on Schedule 4.07(b)(18).
(c) None of the following shall constitute an incurrence of Indebtedness or an issuance of preferred stock or Disqualified Stock for purposes of this Section 4.08:
(1) the accrual of interest or preferred stock dividends;
(2) the accretion or amortization of original issue discount;
(3) the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms;
(4) the reclassification of preferred stock or any other instrument or transaction as Indebtedness due to a change in accounting principles or in GAAP; and
(5) the payment of dividends on preferred stock or Disqualified Stock in the form of additional shares of the same class of preferred stock or Disqualified Stock.
(d) For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred. Notwithstanding any other provision of this Section 4.094.08, the maximum amount of Indebtedness that the Company or any of its Subsidiaries may incur pursuant to this Section 4.08 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.
(e) The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value of the Indebtedness as of such date, in the event that case of any proposed Indebtedness meets issued with original issue discount; and
(2) the criteria of more than one principal amount of the categories Indebtedness as of Permitted Debt described such date, in clauses (i) through (xii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company shall be permitted to classify at the time case of its incurrence such item of Indebtedness in any manner that complies with this Section 4.09. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued under this Indenture shall be deemed to have been incurred on such date in reliance on the exception provided by clause (i)other Indebtedness.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall not nor will it permit any of its Restricted Subsidiaries toSubsidiaries, directly or indirectly, incur to Incur any Indebtedness (including Acquired Debt), and the Company shall not permit any of its Restricted Subsidiaries to issue any Preferred Stock; provided, however, that the Company or any Guarantor may incur Indebtedness at any time prior to January 1, 2009 if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 to 1.0.
(b) So long as no Default would be caused therebyNotwithstanding the provisions of Section 4.11(a), Section 4.09(a) shall not prohibit the incurrence or issuance of Company and, to the extent provided below, any of Restricted Subsidiary may Incur the following (collectively, "PERMITTED DEBT"“Permitted Debt”):
(i1) the incurrence by Debt (which may include letters of credit) of the Company or any Subsidiary Guarantor constituting First-Out Obligations for which the Authorized Representative of Indebtedness under Credit Facilities (such Debt holders has executed a joinder to the Collateral Trust Agreement as provided therein and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) Permitted Refinancing Debt with respect thereto in an aggregate principal amount outstanding at any one time outstanding pursuant to this clause (i) (with letters the date of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) Incurrence not to exceed $950.0 15.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary of the Company to permanently repay any such Indebtedness pursuant to Section 4.10;
(ii2) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture;
(iv) the incurrence by intercompany Debt between or among the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $60.0 million at any time outstanding;
(v) the incurrence by the Company or any Restricted Subsidiary of the Company of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under this Section 4.09(a) or clauses (ii), (iii), (iv), (v) or (xii) of this Section 4.09(b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries; provided, however, that:
(aA) if the Company or any Subsidiary Guarantor is the obligor on such Indebtedness Debt and such Indebtedness is held by a Person that the payee is not the Company, Co-Issuer Corp. Company or a Subsidiary Guarantor, such Indebtedness Debt must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or a Subsidiary Guarantor; and
(B) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness Debt being held by a Person other than the Company or a Restricted Subsidiary thereof of the Company and (ii) any sale or other transfer of any such Indebtedness Debt to a Person that is not either the Company or a Restricted Subsidiary thereofof the Company, shall will be deemed, in each case, to constitute an incurrence of such Indebtedness Debt by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (viSection 4.11(b)(2);
(vii3) the issuance of shares of Preferred Stock by any Debt of the Company's Restricted Subsidiaries Company pursuant to the Convertible Notes and Permitted Refinancing Debt with respect thereto;
(4) Debt of the Company or pursuant to the Notes and Debt of any Subsidiary Guarantor pursuant to a GuarantorNote Guarantee;
(5) Debt constituting an extension or renewal of, replacement of, or substitution for, or issued in exchange for, or the net proceeds of which are used to repay, redeem, repurchase, refinance or refund, including by way of defeasance (all of the foregoing, for purposes of this clause, “refinance”) then outstanding Debt in an amount not to exceed the principal amount of the Debt so refinanced, plus interest, premiums, fees and expenses (“Permitted Refinancing Debt”); provided that that
(iA) any subsequent issuance if the Debt to be refinanced is Subordinated Debt, the new Debt, by its terms or transfer by the terms of any Equity Interests agreement or instrument pursuant to which it is outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that results in such Preferred Stock being held by a Person other than the Debt to be refinanced is subordinated to the Notes or the Note Guarantees (as applicable),
(B) if the Debt to be refinanced is Subordinated Debt or unsecured Debt of the Company or a Guarantor Subsidiary Guarantor, the new Debt does not have a Stated Maturity prior to the earlier of (i) the Stated Maturity of the Notes and (ii) the Stated Maturity of the Debt to be refinanced, and the Average Life of the new Debt is at least equal to the earlier of (i) the Stated Maturity of the Notes and (ii) the remaining Average Life of the Debt to be refinanced;
(C) Debt Incurred pursuant to clauses (1), (2), (6), (7), (9), (10), (11), (12), (14), (16), (17) and (18) of this Section 4.11(b) may not be refinanced pursuant to this clause; and
(D) in no event may Debt of the Company or any sale or other transfer Subsidiary Guarantor be refinanced pursuant to this clause by means of any such Preferred Stock to new Debt of a Person Restricted Subsidiary that is not either a Subsidiary Guarantor;
(6) Hedging Agreements of the Company or a Guarantor shall be deemedany Restricted Subsidiary entered into in the ordinary course of business for the purpose of managing risks associated with the business of the Company or its Subsidiaries and not for speculation;
(7) Debt of the Company or any Restricted Subsidiary with respect to (A) letters of credit and bankers’ acceptances, including letters of credit supporting performance, surety or appeal bonds, workers’ compensation claims, health, disability or other benefits to employees or former employees or their families or property, casualty or liability insurance or self-insurance, and letters of credit in each caseconnection with the maintenance of, or pursuant to constitute an issuance the requirements of, environmental or other permits or licenses from governmental authorities, or other Debt with respect to reimbursement type obligations regarding workers’ compensation claims and (B) indemnification, adjustment of such shares purchase price, earn-out or similar obligations incurred in connection with the acquisition or disposition of Preferred Stock that was any business or assets;
(8) Debt of the Company and any Restricted Subsidiary outstanding on the Issue Date (and not permitted by otherwise constituting Permitted Debt under clauses (1), (4) or (16) of this clause (viiSection 4.11(b));
(viii9) subject to the proviso in Section 4.11(b)(23), the Guarantee by the Issuers Company or any Restricted Subsidiary of the Guarantors of Indebtedness Debt of the Company or a Restricted Subsidiary of the Company Company, to the extent that the guaranteed Debt was permitted to be incurred by another provision of this Section 4.09covenant; provided that if the Debt 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 Debt guaranteed;
(ix10) the incurrence Debt of any Monetization Indebtedness;
(x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to Subsidiary Incurred on or after the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or Issue Date not otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or
(xii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness permitted 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), outstanding on the date of Incurrence not to exceed $50.0 10.0 million;
(11) Debt arising from endorsing instruments of deposit and from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, in each case, in the ordinary course of business; provided that such Debt is extinguished within five business days of Incurrence;
(12) Debt of the Company or any Restricted Subsidiary consisting of the financing of insurance premiums;
(13) [Reserved];
(14) Debt, which may include Capital Leases, Incurred on or after the Issue Date no later than 180 days after the date of acquisition, or completion of installation, construction, repair or improvement of property, for the purpose of financing all or any part of the cost of the acquisition, installation, construction, repair or improvement of property in an aggregate principal amount outstanding on the date of Incurrence not to exceed $10.0 million at any one time outstanding;
(15) Debt incurred or accreted value, acquired in connection with the GrayWolf Merger as applicable) described in the section titled “Summary—Recent Developments—GrayWolf Industrial Acquisition” of Indebtedness of all the Offering Memorandum and Permitted Refinancing Debt with respect thereto; provided that any Preferred Stock or Debt issued to a Restricted Subsidiaries Subsidiary of the Company that are is not Guarantors incurred pursuant a Subsidiary Guarantor in connection with the GrayWolf Merger must be issued by a Subsidiary Guarantor (in each case, other than Preferred Stock or Debt issued by DBM Global to this clause DBM Intermediate) (xiiprovided that DBM Intermediate is a Subsidiary Guarantor), together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not at any time exceed $25.0 million. For purposes of determining compliance with this Section 4.09, in the event that any proposed 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 Section 4.09(a), the Company shall be permitted to classify at the time of its incurrence such item of Indebtedness in any manner that complies with this Section 4.09. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued under this Indenture shall be deemed to have been incurred on such date in reliance on the exception provided by clause (i);
Appears in 1 contract
Sources: Indenture (Hc2 Holdings, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, incur create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable with respect to (collectively, "incur") any Indebtedness (including Acquired Debt), ) and the Company shall will not permit any of its Restricted Subsidiaries to issue any Preferred Stockshares of preferred stock; provided, however, that the Company or any Guarantor may incur Indebtedness at any time prior and may permit a Restricted Subsidiary to January 1, 2009 incur Indebtedness if the Company's Consolidated Leverage Ratio at the time of such incurrence and after giving effect thereto the incurrence of such Indebtedness is Leverage Ratio would be less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 6.5 to 1.0.
. The foregoing limitations will not apply to (b) So long as no Default would be caused thereby, Section 4.09(a) shall not prohibit the incurrence or issuance of any of the following (collectively, "PERMITTED DEBT"):
(i) the incurrence by the Company of Indebtedness under Credit Facilities (and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) in an aggregate principal amount at any one time outstanding pursuant to this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary of the Company to permanently repay any such Indebtedness pursuant to Section 4.10;
(ii) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture;
(iv) the incurrence 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, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $60.0 million at any time outstanding;
(va) the incurrence by the Company or any Restricted Subsidiary of Senior Bank Debt in an aggregate amount not to exceed $100.0 million at any one time outstanding, (b) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees, (c) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness, (d) the issuance by the Company of the Notes, (e) the incurrence by the Company and its Restricted Subsidiaries of Capital Lease Obligations and/or additional Indebtedness constituting purchase money obligations up to an aggregate of $5.0 million at any one time outstanding, provided that the Liens securing such Indebtedness constitute Permitted Liens, (f) the incurrence of Indebtedness between (i) the Company and its Restricted Subsidiaries and (ii) the Restricted Subsidiaries, (g) Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding, (h) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness arising out of letters of credit, performance bonds, surety bonds and bankers' acceptances incurred in the ordinary course of business up to an aggregate of $5.0 million at any one time outstanding, (i) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness consisting of guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, and (j) the incurrence by the Company and its Restricted Subsidiaries of Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to repay, redeem, defease, extend, refinance, renew, replace or refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture referred to be incurred under this Section 4.09(a) or in clauses (ii), (iii), (iv), (v) or (xii) of this Section 4.09(b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries; provided, however, that:
(a) if the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a Guarantor, such Indebtedness must be unsecured and 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 Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory notethrough (e) above, unless the obligor under such Indebtedness is the Company or 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 Company or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a 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 (vij);
(vii) the issuance of shares of Preferred Stock by any of the Company's Restricted Subsidiaries to the Company or to a Guarantor; provided that (i) any subsequent issuance or transfer of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not permitted by this clause (vii);
(viii) the Guarantee by the Issuers or any of the 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;
(ix) the incurrence of any Monetization Indebtedness;
(x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or
(xii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xii), not to exceed $50.0 million; provided that the aggregate principal amount (or accreted value, as applicable) of Indebtedness of all Restricted Subsidiaries of the Company that are not Guarantors incurred pursuant to this clause (xii), together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not at any time exceed $25.0 million. For purposes of determining compliance with this Section 4.09, in the event that any proposed 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 Section 4.09(a), the Company shall be permitted to classify at the time of its incurrence such item of Indebtedness in any manner that complies with this Section 4.09. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued under this Indenture shall be deemed to have been incurred on such date in reliance on the exception provided by clause (i).
Appears in 1 contract
Sources: Indenture (Iron Mountain Inc /De)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, incur create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and the Company shall will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any Preferred Stockshares of preferred stock; provided, however, that the Company or any Guarantor may incur Indebtedness at any time prior to January 1(including Acquired Debt) or issue Disqualified Stock, 2009 if and the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 7.0 to 1.0 and, at any time on or after January 1, 2009Guarantors may incur Indebtedness, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 to 1.0Permitted Debt (as defined below).
(b) So long as no Default would be caused thereby, The provisions of Section 4.09(a4.08(a) shall hereof will not prohibit the incurrence or issuance of any of the following items of Indebtedness (collectively, "PERMITTED DEBT"“Permitted Debt”):
(i1) Existing Indebtedness;
(2) the incurrence by the Company of Indebtedness under Credit Facilities (and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) in an aggregate principal amount at any one time outstanding pursuant to this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary of the Company to permanently repay any such Indebtedness pursuant to Section 4.10;
(ii) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes (including any Additional Notes) in an aggregate principal amount not to exceed US$312.5 million and the related Note Guarantees to be issued on the date of this IndentureGuarantees;
(iv3) the incurrence 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 design, construction, installation or improvement of property, plant or equipment used in the business of the Company or such any of its Restricted SubsidiarySubsidiaries, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance refinance, replace, defease or replace discharge any Indebtedness incurred pursuant to this clause (ivSection 4.08(b)(3), not to exceed $60.0 million exceed, at any time outstanding, US$10.0 million;
(v4) the incurrence by the Company or any of its Restricted Subsidiary of the Company Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance refinance, replace, defease or replace discharge any Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under this Section 4.09(aSections 4.08(b)(1), 4.08(b)(2), 4.08(b)(3), 4.08(b)(4) or clauses (ii4.08(b)(14) hereof; provided, that the incurrence of such Permitted Refinancing Indebtedness shall be treated as a utilization of the capacity under Section 4.08(b)(1), (iii4.08(b)(2), (iv4.08(b)(3), (v4.08(b)(4) or (xii) of this Section 4.09(b4.08(b)(14), as applicable, to incur Indebtedness under such Sections;
(vi5) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by between or among the Company or and any of its Restricted Subsidiaries; provided, however, that:
(aA) if the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that the payee is not the Company, Co-Issuer Corp. Company or a Guarantor, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or a Guarantor; and
(B) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary thereof of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary thereofof the Company, shall will 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 (viSection 4.08(b)(5);
(vii6) the issuance of shares of Preferred Stock by any of the Company's ’s Restricted Subsidiaries to the Company or to a Guarantorany of its Restricted Subsidiaries of shares of preferred stock; provided that provided, that:
(iA) any subsequent issuance or transfer of any Equity Interests that results in any such Preferred Stock preferred stock being held by a Person other than the Company or a Guarantor and Restricted Subsidiary of the Company; and
(iiB) any sale or other transfer of any such Preferred Stock preferred stock to a Person that is not either the Company or a Guarantor shall Restricted Subsidiary of the Company, will be deemed, in each case, to constitute an issuance of such shares of Preferred Stock preferred stock by such Restricted Subsidiary that was not permitted by this clause (viiSection 4.08(b)(6);
(viii7) the Guarantee incurrence by the Issuers Company or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business and the ▇▇▇▇▇▇;
(8) the guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company to the extent that the guaranteed Indebtedness was permitted to be incurred by another provision of this Section 4.094.08; 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;
(ix) the incurrence of any Monetization Indebtedness;
(x9) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of (A) workers’ compensation claims, health, disability or other employee benefits, self-insurance obligations, bankers’ acceptances, performance and surety bonds in the ordinary course of business, (B) performance bonds, bank guarantees or similar obligations for or in connection with pledges, deposits or payments made or given in relation to such performance bonds, bank guarantees or similar instruments in the extent ordinary course of business in connection with or to secure statutory, regulatory or similar obligations and (C) letters of credit issued or incurred to support the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy purchase of supplies and discharge this Indenture pursuant to Article 11 hereofequipment in the ordinary course of business of the Company and its Restricted Subsidiaries;
(xi10) the issuance incurrence by the Company or any of up its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within five Business Days;
(11) Indebtedness arising from agreements of the Company or any Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred in connection with any acquisition or disposition of any business, assets or a Subsidiary of the Company in accordance with the terms of this Indenture, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition; provided, that the maximum assumable liability in respect of all such Indebtedness with respect to 3,500,000 shares a disposition shall at no time exceed the gross proceeds actually received by the Company and its Restricted Subsidiaries in connection with such disposition;
(12) the incurrence by the Company or any of AMC Preferred Stock, its Restricted Subsidiaries of obligations consisting of take-or-pay obligations contained in supply arrangements incurred in the ordinary course of business;
(13) Indebtedness of the Company or any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock of its Restricted Subsidiaries arising pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; orPermitted Tax Reorganization;
(xii14) Indebtedness arising pursuant to an L/C Facility not to exceed, at any time outstanding, US$55.0 million; and
(15) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance refinance, replace, defease or replace discharge any Indebtedness incurred pursuant to this clause (xii15), not to exceed $50.0 US$10.0 million; provided .
(c) The Company will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that the aggregate principal amount (or accreted value, as applicable) is contractually subordinated in right of payment to any other Indebtedness of all Restricted Subsidiaries of the Company or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Note Guarantee on substantially identical terms; provided, that are no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company or such Guarantor solely by virtue of being unsecured, by virtue of being secured on a junior priority basis or by virtue of the fact that the holders of any secured Indebtedness have entered into intercreditor agreements giving one or more such holders priority over the other holders in the collateral held by them. The Company will not Guarantors incurred incur, and will not permit any of its Restricted Subsidiaries to incur, any Indebtedness arising pursuant to this clause streaming transaction payments.
(xii), together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not at any time exceed $25.0 million. d) For purposes of determining compliance with this Section 4.094.08, in the event that any proposed an item of Indebtedness meets the criteria of more than one of the categories clauses of Permitted Debt described in clauses (iSection 4.08(b)(1) through (xii15) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company shall will be permitted to classify at the time of its incurrence such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.094.08. The accrual of interest or preferred stock dividends, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness under in the Credit Agreement outstanding form of additional Indebtedness with the same terms, the reclassification of preferred stock or operating leases as Indebtedness due to a change in accounting principles, and the payment of dividends on preferred stock or Disqualified Stock in the form of additional shares of the same class of preferred stock or Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of preferred stock or Disqualified Stock for purposes of this Section 4.08; provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued. For purposes of determining compliance with any U.S. dollar- denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date on which Notes are first issued under such Indebtedness was incurred. Notwithstanding any other provision of this Indenture Section 4.08, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this Section 4.08 shall not be deemed to have been incurred on such be exceeded solely as a result of fluctuations in exchange rates or currency values.
(e) The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in reliance 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 exception provided by clause assets of the specified Person, the lesser of:
(i)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: Indenture (Greenfire Resources Ltd.)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, incur create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable with respect to (collectively, "incur") any Indebtedness (including Acquired Debt), ) and the Company shall will not permit any of its Restricted Subsidiaries to issue any Preferred Stockshares of preferred stock; provided, however, that the Company or any Guarantor may incur Indebtedness at any time prior and may permit a Restricted Subsidiary to January 1, 2009 incur Indebtedness if the Company's Consolidated Leverage Ratio at the time of such incurrence and after giving effect thereto the incurrence of such Indebtedness is Leverage Ratio would be less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 6.5 to 1.0.
. The foregoing limitations will not apply to (b) So long as no Default would be caused thereby, Section 4.09(a) shall not prohibit the incurrence or issuance of any of the following (collectively, "PERMITTED DEBT"):
(i) the incurrence by the Company of Indebtedness under Credit Facilities (and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) in an aggregate principal amount at any one time outstanding pursuant to this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary of the Company to permanently repay any such Indebtedness pursuant to Section 4.10;
(ii) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture;
(iv) the incurrence 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, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $60.0 million at any time outstanding;
(va) the incurrence by the Company or any Restricted Subsidiary of Senior Bank Debt in an aggregate amount not to exceed $100.0 million at any one time outstanding, (b) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees, (c) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness, (d) the issuance by the Company of the Notes, (e) the incurrence by the Company and its Restricted Subsidiaries of Capital Lease Obligations and/or additional Indebtedness constituting purchase money obligations up to an aggregate of $2.5 million at any one time outstanding, provided that the Liens securing such Indebtedness constitute Permitted Liens, (f) the incurrence of Indebtedness between (i) the Company and its Restricted Subsidiaries and (ii) the Restricted Subsidiaries, (g) Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding, (h) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness arising out of letters of credit, performance bonds, surety bonds and bankers' acceptances incurred in the ordinary course of business up to an aggregate of $2.0 million at any one time outstanding, (i) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness consisting of guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock, and (j) the incurrence by the Company and its Restricted Subsidiaries of Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to repay, redeem, defease, extend, refinance, renew, replace or refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture referred to be incurred under this Section 4.09(a) or in clauses (ii), (iii), (iv), (v) or (xii) of this Section 4.09(b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries; provided, however, that:
(a) if the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a Guarantor, such Indebtedness must be unsecured and 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 Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory notethrough (e) above, unless the obligor under such Indebtedness is the Company or 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 Company or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a 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 (vij);
(vii) the issuance of shares of Preferred Stock by any of the Company's Restricted Subsidiaries to the Company or to a Guarantor; provided that (i) any subsequent issuance or transfer of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not permitted by this clause (vii);
(viii) the Guarantee by the Issuers or any of the 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;
(ix) the incurrence of any Monetization Indebtedness;
(x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or
(xii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xii), not to exceed $50.0 million; provided that the aggregate principal amount (or accreted value, as applicable) of Indebtedness of all Restricted Subsidiaries of the Company that are not Guarantors incurred pursuant to this clause (xii), together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not at any time exceed $25.0 million. For purposes of determining compliance with this Section 4.09, in the event that any proposed 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 Section 4.09(a), the Company shall be permitted to classify at the time of its incurrence such item of Indebtedness in any manner that complies with this Section 4.09. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued under this Indenture shall be deemed to have been incurred on such date in reliance on the exception provided by clause (i).
Appears in 1 contract
Sources: Indenture (Iron Mountain Inc /De)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall not nor will it permit any of its Restricted Subsidiaries toSubsidiaries, directly or indirectly, incur to Incur any Indebtedness (including Acquired Debt. b) Notwithstanding the provisions of Section 4.19(a), and the Company shall not permit and, to the extent provided below, any Subsidiary may Incur the following (“Permitted Debt”): (1) Debt (which may include letters of its Restricted Subsidiaries to issue any Preferred Stock; provided, however, that credit) of the Company or any Subsidiary Guarantor may incur Indebtedness at any time prior constituting First-Out Obligations Incurred pursuant to January 1, 2009 if the Company's Consolidated Leverage Ratio at Revolving Credit Agreement for which the time of the incurrence Authorized Representative of such Indebtedness is less than 7.0 Debt holders has executed a joinder to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 to 1.0.
(b) So long Collateral Trust Agreement as no Default would be caused thereby, Section 4.09(a) shall not prohibit the incurrence or issuance of any of the following (collectively, "PERMITTED DEBT"):
(i) the incurrence by the Company of Indebtedness under Credit Facilities (provided therein and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) Permitted Refinancing Debt with respect thereto in an aggregate principal amount outstanding at any one time outstanding pursuant to this clause (i) (with letters the date of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) Incurrence not to exceed $950.0 20.5 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by ; (2) intercompany Debt between or among the Company or any Restricted Subsidiary of the Company to permanently repay any such Indebtedness pursuant to Section 4.10;
(ii) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture;
(iv) the incurrence 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, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $60.0 million at any time outstanding;
(v) the incurrence by the Company or any Restricted Subsidiary of the Company of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under this Section 4.09(a) or clauses (ii), (iii), (iv), (v) or (xii) of this Section 4.09(b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries; provided, however, that:
: (aA) if the Company or any Subsidiary Guarantor is the an obligor on such Indebtedness Debt and such Indebtedness is held by a Person that the payee is not the Company, Co-Issuer Corp. Company or a Subsidiary Guarantor, such Indebtedness Debt must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor;
(b) Indebtedness owed , in each case pursuant to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or a GuarantorIntercompany Subordination Agreement; and
and (B) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness Debt being held by a Person other than the Company or a Restricted Subsidiary thereof of the Company and (ii) any sale or other transfer of any such Indebtedness Debt to a Person that is not either the Company or a Restricted Subsidiary thereofof the Company, shall will be deemed, in each case, to constitute an incurrence of such Indebtedness Debt by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause Section 4.19(b)(2); (vi);
(vii3) the issuance of shares of Preferred Stock by any of the Company's Restricted Subsidiaries to the Company or to a Guarantor; provided that (i) any subsequent issuance or transfer of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not permitted by this clause (vii);
(viii) the Guarantee by the Issuers or any of the Guarantors of Indebtedness unsecured Debt of the Company or a Restricted any Subsidiary of the Company that was permitted to be incurred by another provision of this Section 4.09;
Guarantor (ix) the incurrence of any Monetization Indebtedness;
(x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of including without limitation Disqualified Equity Interests (other than Disqualified Stockof such Person) on any of the foregoing as a dividend; or
(xii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness and Permitted Refinancing Debt with respect thereto in an aggregate principal amount outstanding on the date of incurrence not to exceed the greater of $5.0 million; provided that such Debt has a Stated Maturity after the Stated Maturity of the Notes; (or accreted value, as applicable4) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred Debt of the Company Debt of the Company pursuant to this clause (xii)a) the Notes issued on the Issue Date, (b) Additional New Senior Secured Notes in an aggregate principal amount not to exceed $50.0 million; provided that 2,073,143, (c) PIK Notes issued in payment of interest accrued on the aggregate principal amount (or accreted value, as applicable) of Indebtedness of all Restricted Subsidiaries of Notes during the Company that are not Guarantors incurred First Interest Period pursuant to this clause the terms hereof, (xii)d) additional New Senior Secured Notes issued as payment in kind of interest accrued on the New Senior Secured Notes during the interest period thereunder ending February 15, together with all Permitted Refinancing Indebtedness incurred to refund2026, refinance or replace any such Indebtedness, shall not at any time exceed $25.0 million. For purposes of determining compliance with this Section 4.09, in the event that any proposed 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 Section 4.09(a)the terms thereof, the Company shall be permitted to classify at the time and (e) Debt of its incurrence such item of Indebtedness in any manner that complies with this Section 4.09. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued under this Indenture shall be deemed to have been incurred on such date in reliance on the exception provided by clause (i)Subsidiary
Appears in 1 contract
Sources: Indenture (INNOVATE Corp.)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company and the Guarantors shall not, and shall not permit any of its Restricted their Subsidiaries to, directly directly, or indirectly, incur create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, "incur") any Indebtedness (including Acquired Debt), ) and the Company shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of Preferred Stock; provided, however, that the Company or any Guarantor may incur Indebtedness at any time prior to January 1, 2009 (including Acquired Debt) or issue shares of Disqualified Stock if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 7.0 or the issuance of such Disqualified Stock or such Preferred Stock, as the case may be, after giving pro forma effect to 1.0 and, at any time on such incurrence or after January 1, 2009, issuance as of such date and to the use of the proceeds therefrom as if the Company's Consolidated Leverage Ratio same had occurred at the time beginning of the incurrence most recently ended four full fiscal quarters of such Indebtedness is less the Company for which internal financial statements are available, would have been no greater than 6.0 7.1 to 1.0.
(b) So long as no Default would be caused thereby, 1. The provisions of the first paragraph of this Section 4.09(a) 4.09 shall not prohibit the incurrence or issuance of any of the following items of Indebtedness (collectively, "PERMITTED DEBT"Permitted Debt):
(i) the incurrence by the Company and any Restricted Subsidiary of Indebtedness and letters of credit under Credit Facilities (and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) in an aggregate principal amount at any one time outstanding pursuant to under this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 million, 250,000,000 less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any and the Restricted Subsidiary of the Company Subsidiaries to permanently repay any such reduce the availability of Indebtedness under the Credit Facility pursuant to Section 4.10;
(ii) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Issuers Company and the Guarantors of Indebtedness represented by the Notes and the related Note Subsidiary Guarantees to be issued on the date of this Indenture;
(iv) the incurrence 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, case incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in whether through the business direct purchase of assets or at least a majority of the Company or Voting Stock of any person owning such Restricted Subsidiaryassets, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), ) not to exceed $60.0 million 10,000,000 at any time outstanding;
(v) the incurrence by the Company or any of its Restricted Subsidiary of the Company Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under the first paragraph of this Section 4.09(a) 4.09 or clauses (ii), (iii), (iv), (v), (x) or (xii) of this Section 4.09(b);paragraph.
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by between or among the Company or and any of its Restricted Wholly-Owned Subsidiaries; provided, however, that:
that (a) if the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a Guarantor, such Indebtedness must be unsecured and 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 Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or a Guarantor; and
(ix) 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 Restricted Subsidiary thereof of the Company and (iiy) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary thereofof the Company, 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 (vi);; 55
(vii) the issuance incurrence by the Company or any of shares its Restricted Subsidiaries of Preferred Stock Hedging Obligations (x) that are incurred for the purpose of fixing or hedging (1) interest rate risk with respect to any floating rate Indebtedness that is permitted by any the terms of this Indenture to be outstanding or (2) currency exchange rate risk in ordinary course of business, or (y) that are incurred for the purpose of swapping fixed interest rates for floating interest rates in notional amounts not to exceed $100,000,000 in the aggregate; provided that in the case of agreements related to currency exchange rate risk, such agreements are related to business transactions of the Company or its Restricted Subsidiaries entered into in the ordinary course of business or in the case of agreements related to currency exchange rate risk, agreements related to investment rate risk and interest rate swap agreements, such agreements are entered into for bona fide hedging purposes, or bona fide business purposes, in the case of interest rate swaps, of the Company or its Restricted Subsidiaries (as determined in good faith by the Board of Directors or senior management of the Company's Restricted Subsidiaries ) and substantially correspond in terms of notional amount, duration, currencies and interest rates, as applicable, to Indebtedness of the Company or to a Guarantor; provided that (i) any subsequent issuance or transfer its Restricted Subsidiaries incurred without violation of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not permitted by this clause (vii)Indenture;
(viii) the Guarantee guarantee by the Issuers or any of the Guarantors Company of Indebtedness of the Company or a any Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Section 4.09covenant;
(ix) the incurrence guarantee by any Restricted Subsidiary of Indebtedness of the Company or any Monetization IndebtednessGuarantor that was permitted to be incurred by another provision of this covenant;
(x) Indebtedness incurred by the Company or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including without limitation letters of credit in respect to workers' compensation claims 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 of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;
(xi) Obligations in respect of performance and surety bonds and completion guarantees provided by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(xii) Acquisition Debt of the Company or a Restricted Subsidiary if (w) such Acquisition Debt is incurred within 270 days after the date on which the related definitive acquisition agreement or LMA, as the case may be, was entered into by the Company or such Restricted Subsidiary, (x) the aggregate principal amount of such Acquisition Debt is no greater than the aggregate principal amount of Acquisition Debt set forth in a notice from the Company to the Trustee (an Incurrence Notice) within ten days after the date on which the related definitive acquisition agreement or LMA, as the case may be, was entered into by the Company or such Restricted Subsidiary, which notice shall be executed on the Company's behalf by the chief financial officer of the Company in such capacity and shall describe in reasonable detail the acquisition or LMA, as the case may be, which such Acquisition Debt shall be incurred to finance, (y) after giving pro forma effect to the acquisition or LMA, as the case may be, described in such Incurrence Notice, the Company or such Restricted Subsidiary could have incurred such Acquisition Debt under this Indenture, including compliance with the first paragraph of this covenant, as of the date upon which the Company delivers such Incurrence Notice to the Trustee and (z) such Acquisition Debt is utilized solely to finance the acquisition or LMA, as the case may be, described in such Incurrence Notice and any other pending acquisitions and/or LMAs previously described in one or more Incurrence Notices (including to repay or refinance indebtedness or other obligations incurred in connection with such acquisition or LMA, as the case may be, and to pay related fees and expenses);
(xiii) 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 will be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Company that was not permitted by this clause (xiii); and
(xiv) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or
(xii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (xiixiv), not to exceed $50.0 million; provided that the aggregate principal amount (or accreted value, as applicable) of Indebtedness of all Restricted Subsidiaries of the Company that are not Guarantors incurred pursuant to this clause (xii), together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not at any time exceed $25.0 million20,000,000. For purposes of determining compliance with this Section 4.09, in the event that any an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xiixiv) above, or is entitled to be incurred pursuant to the first paragraph of this Section 4.09(a)4.09, the Company shall be permitted to classify at the time of its incurrence such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.09. Accrual of interest, accretion or amortization of original issue discount and the accretion of accreted value shall not be deemed to be an incurrence of Indebtedness for purposes of this Section 4.09. Indebtedness under the Credit Agreement Facilities outstanding on the date on which Notes are first issued and authenticated under this Indenture shall be deemed to have been incurred on such date in reliance on the exception provided by clause (i)) of the definition of Permitted Debt.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company Issuers shall not, and shall not permit any of its Restricted their Subsidiaries to, directly or indirectly, incur create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, "incur") any Indebtedness (including Acquired Debt), and the Company Issuers shall not issue any Disqualified Stock and shall not permit any of its Restricted their Subsidiaries to issue any Preferred Stock; provided, however, that the Company or any Guarantor may incur Indebtedness at any time prior to January 1, 2009 if the Company's Consolidated Leverage Ratio at the time shares of the incurrence preferred stock. The first paragraph of such Indebtedness is less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 to 1.0.
(b) So long as no Default would be caused thereby, this Section 4.09(a) 4.09 shall not prohibit the incurrence or issuance of any of the following items of Indebtedness (collectively, "PERMITTED DEBTPermitted Debt"):
(i) the incurrence by the Company of Indebtedness under Credit Facilities (and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) in an aggregate principal amount at any one time outstanding pursuant to this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary of the Company to permanently repay any such Indebtedness pursuant to Section 4.10;
(ii) the incurrence of Existing Indebtedness;
(iiia) the incurrence by the Issuers and their Subsidiaries of the Guarantors Existing Indebtedness;
(b) the incurrence by the Issuers of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this IndentureSubordinated Notes;
(ivc) with respect to lease or rental commitments to lessees (i) existing as of the date hereof or (ii) permitted to be incurred by Foreign Subsidiaries after the date hereof in accordance with Section 4.12, the incurrence by the Company Issuers or any of its Restricted their Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, obligations incurred for the purpose of financing all or any part of the purchase price or cost of construction equipment leased or improvement sold to, or otherwise financed for, a customer of property, plant or equipment used in the business of the Company Issuers or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (ivc), not to exceed $60.0 10.0 million at any time outstanding;
(vd) the incurrence by (i) the Company Issuers or any Restricted Subsidiary of their Subsidiaries or (ii) with respect to clause (b) of this Section 4.09, the Company Issuers, of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under this Section 4.09(a) or clauses (iia), (iiib), (ivc), (vd), (g), (i) or (xiik) of this Section 4.09(b)paragraph;
(vie) the incurrence by the Company Issuers or any of its Restricted their Subsidiaries of intercompany Indebtedness owing to between or among the Issuers and held by the Company or any of its Restricted their Subsidiaries; provided, however, that:
(ai) if either the Company or any Guarantor NLC is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a GuarantorIndebtedness, such Indebtedness must be unsecured and 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 Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or a Guarantor; and
(iii) (1) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company Issuers or a Restricted Subsidiary thereof of the Issuers and (ii2) any sale or other transfer of any such Indebtedness to a Person that is not either the Company Company, NLC or a Restricted Subsidiary thereof, of the Issuers shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company Issuers or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vie);
(viif) the issuance of shares of Preferred Stock by any of the Company's Restricted Subsidiaries to the Company or to a Guarantor; provided that (i) any subsequent issuance or transfer of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not permitted by this clause (vii);
(viii) the Guarantee incurrence by the Issuers or any of their Subsidiaries of Hedging Obligations that are incurred for the Guarantors purpose of fixing or hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding or for the purpose of fixing or hedging currency risk;
(g) the accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock 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 the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision Disqualified Stock for purposes of this Section 4.09;
(ixh) Indebtedness of the incurrence of Issuers or any Monetization Indebtedness;Subsidiary to the extent that the net proceeds thereof are promptly:
(xi) used to purchase Notes tendered in an offer to purchase made as a result of a Change in Control; or
(ii) used to redeem Notes pursuant to Section 3.08 hereof.
(i) the incurrence by the Company Issuers or any of its Restricted Subsidiaries of Indebtedness to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or
(xii) the incurrence by the Company or any of its Restricted their Subsidiaries of additional Indebtedness (including Acquired Debt) 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 (xiii), not to exceed $50.0 5.0 million;
(j) the incurrence of Non-Recourse Debt; provided provided, however, that the aggregate principal amount (or accreted valueif any such Indebtedness ceases to be Non-Recourse Debt, as applicable) such event shall be deemed to constitute an incurrence of Indebtedness of all Restricted Subsidiaries by a Subsidiary of the Company Issuers that are was not Guarantors incurred pursuant to permitted by this clause (xiij); and
(k) obligations in respect of letters of credit, together with all Permitted Refinancing Indebtedness incurred performance and surety bonds and completion guarantees provided by the Issuers or any Subsidiary of the Issuers in the ordinary course of business, including pursuant to refund, refinance or replace any such Indebtedness, the Letter of Credit Facility. The Issuers shall not at incur any time exceed $25.0 millionIndebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Issuers (other than the Notes or the Subordinated Notes) unless such Indebtedness is also contractually subordinated in right of payment to the Notes 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 other Indebtedness of the Issuers solely by virtue of being unsecured. For purposes of determining compliance with this Section 4.09, in the event that any an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (ia) through (xiik) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company shall be permitted to classify at the time of its incurrence such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.09. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued under this Indenture shall be deemed to have been incurred on such date in reliance on the exception provided by clause (i).
Appears in 1 contract
Sources: Indenture (Comdisco Holding Co Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall not, and shall not cause or permit any of its Restricted the Subsidiaries to, directly or indirectly, incur create, incur, assume, issue, guarantee or in any manner become liable for or with respect to, contingently or otherwise (in each case, to “incur”), the payment of, any Indebtedness (including any Acquired Debt), and the Company shall not permit any of its Restricted Subsidiaries to Indebtedness) or issue any Preferred Stock; , provided, however, that the Company or any Guarantor and, to the extent specifically set forth below, the Guarantors and the Subsidiaries may incur Indebtedness at any time prior to January 1, 2009 if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 to 1.0.
(b) So long as no Default would be caused thereby, Section 4.09(a) shall not prohibit the incurrence or issuance of any each and all of the following (collectively, "PERMITTED DEBT"“Permitted Indebtedness”):
(i) the incurrence by Indebtedness of the Company of Indebtedness or the SPV under Credit Facilities (and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) SPV Financing Agreement in an aggregate principal amount at any one time outstanding pursuant to this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 58.8 million, less (x) any mandatory prepayment made thereunder or scheduled payments made thereunder and (y) the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary of the Company to permanently repay any such Indebtedness pursuant to Section 4.10repaid with the Net Cash Proceeds of any Asset Sale or Casualty Event;
(ii) the incurrence of Existing Senior Indebtedness;
(iii) Subordinated Indebtedness or Preferred Stock of the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees Company or any Guarantor in an aggregate principal amount or liquidation value at any one time outstanding not to be issued on the date of this Indentureexceed $12.0 million;
(iv) Indebtedness of (i) the Company pursuant to the Series A Notes and Indebtedness of any Guarantor pursuant to a Subsidiary Guarantee of the Series A Notes and (ii) the Company pursuant to the Series B Notes;
(v) Indebtedness of the Company or any Subsidiary outstanding at the Closing Time;
(vi) Indebtedness of the Company owing to a Wholly Owned Subsidiary for so long as such Indebtedness is owing to a Wholly Owned Subsidiary; provided that any Indebtedness of the Company to any Wholly Owned Subsidiary is Subordinated Indebtedness, pursuant to a written agreement, to the Company’s obligations under this Agreement and the Series A Notes; provided, further, that disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Wholly Owned Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company not permitted by this clause (vi);
(vii) Indebtedness of a Wholly Owned Subsidiary owing to and held by the Company or another Wholly Owned Subsidiary which is unsecured; provided that (a) any disposition, pledge or transfer of any such Indebtedness to a Person (other than the Company or a Wholly Owned Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vii), and (b) any transaction pursuant to which any Wholly Owned Subsidiary, which has Indebtedness owing to the Company or any other Wholly Owned Subsidiary, ceases to be a Wholly Owned Subsidiary shall be deemed to be the incurrence of Indebtedness by such Wholly Owned Subsidiary that is not permitted by this clause (vii); provided, further, that if such Indebtedness is incurred by a non-Guarantor (other than Terremark Latin America (Brasil) Ltda. or any future Wholly Owned Subsidiary that is a Foreign Subsidiary) then such incurrence must also comply with clause (e) of the definition of “Permitted Investments”;
(viii) the incurrence by the Company or any Subsidiary of the Company of Hedging Obligations that are incurred in the ordinary course of business of the Company or such Subsidiary or the SPV Financing Agreement as in effect on the date hereof and not for speculative purposes; provided that, in the case of any Hedging Obligation that relates to (i) interest rate risk, the notional principal amount of such Hedging Obligation does not exceed the principal amount of the Indebtedness to which such Hedging Obligation related and (ii) currency risk, such Hedging Obligation does not increase the Indebtedness of the Company and its Restricted Subsidiaries outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder;
(ix) Indebtedness of the Company or any Subsidiary represented by Capital Capitalized Lease Obligations, mortgage financings Obligations or purchase money obligations, Purchase Money Obligations or other Indebtedness incurred or assumed in connection with the acquisition or development of real or personal movable or immovable property in each case, case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment property used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred amount pursuant to this clause (iv)ix) not to exceed $24.0 million at any one time outstanding; provided that no more than $3.0 million of such Indebtedness may be at any one time outstanding at Subsidiaries that are not Guarantors; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company or such Subsidiary in good faith, of the property to which it relates; provided, further, that any such Indebtedness permitted under this clause (ix) is either (A) Subordinated Indebtedness or (B) with respect to any real or personal property other than the specific property being financed or refinanced, secured by a Lien which is junior to the Liens granted pursuant to the Security Documents;
(x) letters of credit to support workers compensation obligations and bankers acceptances and performance bonds, surety bonds and performance guarantees of the Company or any Guarantor, in each case, in the ordinary course of business consistent with past practice, not to exceed $60.0 3.0 million in the aggregate at any time outstanding;
(vxi) the incurrence by Preferred Stock of NAP Madrid issued to the Company or any Restricted Subsidiary Guarantor in consideration for the transfer of assets; provided that all shares of such Preferred Stock that are required to be pledged pursuant to Section 7.12(b) shall have been pledged as Collateral;
(xii) the Company’s guarantee, in an amount not to exceed €570,000, of the Company of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture lease to be incurred under this Section 4.09(atransferred by TerreNAP Data Centers, Inc. to NAP Madrid; and
(xiii) any renewals, extensions, substitutions, refundings, refinancings or replacements (collectively, a “refinancing”) of any Indebtedness described in clauses (i), (ii), (iii), (iv), ) and (v) above, including any successive refinancings so long as the aggregate principal amount of Indebtedness represented thereby is not increased by such refinancing plus the lesser of (I) the stated amount of any premium or other payment required to be paid in connection with such a refinancing pursuant to the terms of the Indebtedness being refinanced or (xii) of this Section 4.09(b);
(viII) the incurrence by amount of premium or other payment actually paid at such time to refinance the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries; providedIndebtedness, however, that:
(a) if the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a Guarantor, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notesplus, in the case of the Company, or the Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or 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 Company or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary thereof, shall be deemed, in each case, to constitute an incurrence the amount of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi);
(vii) the issuance of shares of Preferred Stock by any of the Company's Restricted Subsidiaries to the Company or to a Guarantor; provided that (i) any subsequent issuance or transfer of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not permitted by this clause (vii);
(viii) the Guarantee by the Issuers or any of the Guarantors of Indebtedness expenses of the Company or a Restricted Subsidiary of the Company incurred in connection with such refinancing and (A) in the case of any refinancing of Indebtedness that was permitted is Subordinated Indebtedness, such new Indebtedness is subordinated to be incurred by another provision the Series A Notes at least to the same extent as the Indebtedness being refinanced and (B) such refinancing does not reduce the Average Life to Stated Maturity or the Stated Maturity of this Section 4.09;such Indebtedness.
(ixb) the incurrence of any Monetization Indebtedness;
(x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or
(xii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xii), not to exceed $50.0 million; provided that the aggregate principal amount (or accreted value, as applicable) of Indebtedness of all Restricted Subsidiaries of the Company that are not Guarantors incurred pursuant to this clause (xii), together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not at any time exceed $25.0 million. For purposes of determining compliance with this Section 4.098.04, in the event that any proposed an item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt Indebtedness described in clauses (i) through (xiixi) above, or is entitled to be incurred pursuant to Section 4.09(aof the immediately preceding paragraph (a), the Company shall be permitted to shall, in its sole discretion, classify at the time of its incurrence such item of Indebtedness in any manner that complies with this Section 4.098.04 and will only be required to include the amount and type of such Indebtedness in one of such clauses. Indebtedness under Accrual of interest, accretion of accreted value and the Credit Agreement outstanding on payment of interest through the date on which Notes are first issued under this Indenture issuance of securities paid-in-kind shall not be deemed to have been incurred on such date in reliance on the exception provided by clause (i)be an incurrence of Indebtedness for purposes of this Section 8.04.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, incur create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and the Company shall not permit any of its Restricted Subsidiaries to issue any Preferred Disqualified Stock; provided, however, that the Company or any Guarantor may incur Indebtedness at any time prior to January 1, 2009 if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less other than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 to 1.0Permitted Debt.
(b) So long as no Default would be caused thereby, Section 4.09(a) shall not prohibit For the incurrence or issuance of any purposes of the following (collectivelyIndenture, "PERMITTED DEBT"):“Permitted Debt” shall be defined as:
(i) the incurrence by Indebtedness of the Company of Indebtedness and its Restricted Subsidiaries under the Credit Facilities (and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) Agreement in an aggregate principal amount at any one time outstanding pursuant to this clause (i) (with letters of credit credit, if any, being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) in an amount not to exceed (A) the lesser of (x) $950.0 9.625 billion minus the amount outstanding under the TRS Facility or (y) the amounts committed or outstanding under the Credit Agreement on the Issue Date plus $100.0 million, less minus (B) the aggregate amount of all Net Proceeds of Asset Sales applied by permanent repayments and/or permanent commitment reductions under the Company or any Restricted Subsidiary of Credit Agreement after the Company to permanently repay any such Indebtedness pursuant to Section 4.10Issue Date;
(ii) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture;
(iv) the incurrence 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, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $60.0 million at any time outstanding;
(v) the incurrence by the Company or any Restricted Subsidiary of the Company of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under this Section 4.09(a) or clauses (ii), (iii), (iv), (v) or (xii) of this Section 4.09(b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries; provided, however, that:
(a) if the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a Guarantor, such Indebtedness must be unsecured and 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 Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed (1) to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless or (2) to any Subsidiary of the obligor under such Indebtedness is the Company or a GuarantorCompany; and
(i) provided that any subsequent issuance or transfer of Equity Interests that event which results in any such Subsidiary ceasing to be a Subsidiary or any subsequent transfer of such Indebtedness being held by a Person (other than to the Company or a Restricted Subsidiary thereof and (iianother Subsidiary) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary thereof, shall be deemed, in each case, to constitute an incurrence Incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (ii);
(iii) Indebtedness under the Notes, the Note Guarantees, the Series B Notes and the Guarantees of the Series B Notes issued on the Issue Date;
(iv) Indebtedness incurred by the Company or any of its Restricted Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations incurred in connection with the acquisition or disposition of any business or assets of or by the Company or any Subsidiary of the Company or Equity Interests of a Subsidiary of the Company;
(v) Indebtedness which may be deemed to exist pursuant to (1) any guaranties of obligations other than Indebtedness, or (2) performance, surety, statutory, real estate operating leases, appeal or similar obligations incurred in the Ordinary Course of Business;
(vi)) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with customary Deposit Accounts maintained by the Company or any Restricted Subsidiary of the Company as part of its ordinary cash management program;
(vii) performance guaranties in the issuance Ordinary Course of shares of Preferred Stock by any Business of the Company's Restricted Subsidiaries to obligations (other than Indebtedness for money borrowed) of suppliers, customers, franchisees and licensees of the Company or to a Guarantor; provided that (i) any subsequent issuance or transfer of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not permitted by this clause (vii)its Subsidiaries;
(viii) the Guarantee by the Issuers Company or any of the Guarantors Restricted Subsidiary of Indebtedness of the Company or a any Restricted Subsidiary of the Company (other than Guarantees by any Guarantor or any Restricted Subsidiary of the Company of Indebtedness of the Company (unless the Parent Pledge has been granted) or any Restricted Subsidiary that is not a Subsidiary of a Guarantor) that was permitted to be incurred by another provision of this Section 4.097.2;
(ix) Indebtedness existing on the incurrence of any Monetization IndebtednessIssue Date not otherwise set forth in Section 7.2(b)(i) through (viii) or (x) through (xxii);
(x1) Indebtedness of the incurrence by Company or any of its Subsidiaries under Rate Management Transactions entered into in the Ordinary Course of Business and not for speculative purposes and (2) Indebtedness of the Company or any of its Subsidiaries under Rate Management Transactions in respect of foreign currencies entered into in connection with the New Notes or the Loans and not for speculative purposes;
(xi) purchase money Indebtedness or Capital Lease Obligations of the Company or any of its Restricted Subsidiaries Subsidiaries; provided that such Indebtedness or Capital Lease Obligations (x) may be incurred at the time of Indebtedness to purchase of the extent the net assets acquired in connection therewith or financed thereunder or within 180 days thereafter, and (y) is or are secured only by (1) assets acquired in connection with such financing or financed thereunder and intangibles and proceeds thereof are promptly deposited to related thereto (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv“PMSI Assets”), and (2) any subsequent issuance of Equity Interests (other than Disqualified Stock) on any PMSI Assets which may be acquired in connection with or financed under Indebtedness or Capital Lease Obligations which are part of the foregoing same transaction or a related series of transactions as a dividend; orsuch Indebtedness or Capital Lease Obligations, and (3) any other assets which are not prohibited by the terms of the indentures from being pledged to secure such Indebtedness or Capital Lease Obligations;
(xii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount Permitted Funding Indebtedness;
(or accreted value, as applicablexiii) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any of Indebtedness incurred pursuant to this clause (xiidescribed in Section 7.2(b)(iii), not to exceed $50.0 million(ix) or (xi) (including subsequent refinancings of the foregoing that constitute Permitted Refinancing Indebtedness); provided that any such Indebtedness, to the aggregate principal amount extent secured, shall not be secured by any collateral other than collateral that secured the Indebtedness being refinanced or collateral substantially similar thereto;
(xiv) Indebtedness incurred or accreted valueassumed in connection with or related to Bank Activities;
(xv) (i) customary subordinated Indebtedness (whether term or revolving) owed by finance Subsidiaries that are Special Purpose Entities or other Subsidiaries in connection with securitizations, as applicableconduits or like transactions incurred in the Ordinary Course of Business to enable such Special Purpose Entity or such other Subsidiary to acquire Portfolio Assets to be transferred to any such entity under such transactions, and (ii) limited guaranties of Indebtedness obligations of all Restricted financing Subsidiaries of the Company that are Special Purpose Entities and other Subsidiaries of the Company in connection with securitization, conduit facilities and like transactions related to Ordinary Course of Business activities (including, without limitation, to the extent applicable, performance guaranties (other than payment obligations with respect to the underlying Indebtedness that exceed 10% of the amount of the Indebtedness) and guaranties consistent with the delivery of a “true sale"/“absolute transfer” opinion with respect to any transfer by Company or any Restricted Subsidiary to the applicable financing Special Purpose Entity, Restricted Subsidiary of the Company or other Subsidiary of the Company);
(xvi) guaranties by CIT Aerospace, CIT Leasing or other Restricted Subsidiaries of the Company operating in the Company’s Transportation Finance segment of Indebtedness of Unrestricted Subsidiaries of the Company with respect to the financing of newly acquired transportation assets or the lease of transportation assets in the Ordinary Course of Business;
(xvii) guaranties by the Company or any Restricted Subsidiary of the Company of Indebtedness of any Restricted Subsidiary of the Company incurred in the Ordinary Course of Business;
(xviii) guaranties by the Company or a Restricted Subsidiary of Indebtedness or other obligations of an Owner-Trustee as lessor under a lease of Portfolio Assets or other related documents, incurred in the Ordinary Course of Business;
(xix) Indebtedness under, and guaranties of, the TRS Facility;
(xx) Indebtedness under, and guaranties of, LC Facilities in an aggregate amount not Guarantors incurred pursuant to this exceed $750.0 million;
(xxi) obligations of Restricted Subsidiaries of the Company to pay the deferred purchase price of receivables acquired in the trade finance business in the Ordinary Course of Business;
(xxii) Permitted Reestablishment Indebtedness secured by Liens described in clause (xii), together with all 29) of the definition of Permitted Refinancing Liens; and
(xxiii) other Indebtedness incurred of the Company and its Restricted Subsidiaries in an aggregate amount not to refund, refinance or replace any such Indebtedness, shall not exceed at any time exceed the greater of $25.0 million. 500.0 million or 1% of Total Assets.
(c) For purposes of determining compliance with this Section 4.097.2, in the event that any an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (iSection 7.2(b)(i) through (xii) above, or is entitled to be incurred pursuant to Section 4.09(axxiii), the Company shall be permitted to classify at the time of its incurrence such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.097.2. Indebtedness under the Credit Agreement Facilities outstanding on the date on which Notes are first issued under this Indenture Issue Date shall initially be deemed to have been incurred on such date in reliance on the exception provided by clause Section 7.2(b)(i) (or in the case of Credit Facilities other than the Credit Agreement, Section 7.2(b)(ix)). Indebtedness under the TRS Facility outstanding on the Issue Date shall initially be deemed to have been incurred on such date in reliance on the exception provided by Section 7.2(b)(xix). Indebtedness under the LC Facilities outstanding on the Issue Date shall initially be deemed to have been incurred on such date in reliance on the exception provided by Section 7.2(b)(xx). 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 shall not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 7.2. Notwithstanding any other provision of this Section 7.2, the maximum amount of Indebtedness that the Company or any of its Restricted Subsidiaries may incur pursuant to this Section 7.2 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.
(d) The amount of any Indebtedness outstanding as of any date shall 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 amount of the Indebtedness of the other Person.
(e) Notwithstanding anything herein to the contrary, (i) CIT Funding shall not be permitted to incur any Indebtedness other than Series B Notes, (ii) the Barbados Entities shall not be permitted to incur any Indebtedness other than Indebtedness under Section 7.2(b)(i), (iii), (ix), (xiii) and (xix), and (iii) CFL shall not be permitted to Guarantee any Indebtedness of the Company and its Restricted Subsidiaries.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall not nor will it permit any of its Restricted Subsidiaries toSubsidiaries, directly or indirectly, incur to Incur any Indebtedness (including Acquired Debt), and the Company shall not permit any of its Restricted Subsidiaries to issue any Preferred Stock; provided, however, that the Company or any Guarantor may incur Indebtedness at any time prior to January 1, 2009 if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 to 1.0.
(b) So long as no Default would be caused therebyNotwithstanding the provisions of Section 4.11(a), Section 4.09(a) shall not prohibit the incurrence or issuance of Company and, to the extent provided below, any of Restricted Subsidiary may Incur the following (collectively, "PERMITTED DEBT"“Permitted Debt”):
(i1) the incurrence by Debt (which may include letters of credit) of the Company or any Subsidiary Guarantor constituting First-Out Obligations for which the Authorized Representative of Indebtedness under Credit Facilities (such Debt holders has executed a joinder to the Collateral Trust Agreement as provided therein and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) Permitted Refinancing Debt with respect thereto in an aggregate principal amount outstanding at any one time outstanding pursuant to this clause (i) (with letters the date of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) Incurrence not to exceed $950.0 20.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary of the Company to permanently repay any such Indebtedness pursuant to Section 4.10;
(ii2) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture;
(iv) the incurrence by intercompany Debt between or among the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $60.0 million at any time outstanding;
(v) the incurrence by the Company or any Restricted Subsidiary of the Company of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under this Section 4.09(a) or clauses (ii), (iii), (iv), (v) or (xii) of this Section 4.09(b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries; provided, however, that:
(aA) if the Company or any Subsidiary Guarantor is the obligor on such Indebtedness Debt and such Indebtedness is held by a Person that the payee is not the Company, Co-Issuer Corp. Company or a Subsidiary Guarantor, such Indebtedness Debt must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or a Subsidiary Guarantor; and
(i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness Debt being held by a Person other than the Company or a Restricted Subsidiary thereof of the Company and (ii) any sale or other transfer of any such Indebtedness Debt to a Person that is not either the Company or a Restricted Subsidiary thereofof the Company, shall will be deemed, in each case, to constitute an incurrence of such Indebtedness Debt by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (viSection 4.11(b)(2);
(vii3) the issuance unsecured Debt of shares of Preferred Stock by any of the Company's Restricted Subsidiaries to the Company or any Subsidiary Guarantor (including without limitation Disqualified Equity Interests of such Person) and Permitted Refinancing Debt with respect thereto in an aggregate principal amount outstanding on the date of incurrence not to a Guarantorexceed the greater of $50.0 million and 5.50% of Total Assets; provided that such Debt has a Stated Maturity after the Stated Maturity of the Notes;
(i4) any subsequent issuance or transfer Debt of the Company pursuant to the Notes (other than Additional Notes) and Debt of any Equity Interests Subsidiary Guarantor pursuant to a Note Guarantee (including Additional Notes);
(5) Debt constituting an extension or renewal of, replacement of, or substitution for, or issued in exchange for, or the net proceeds of which are used to repay, redeem, repurchase, refinance or refund, including by way of defeasance (all of the foregoing, for purposes of this clause, “refinance”) then outstanding Debt in an amount not to exceed the principal amount of the Debt so refinanced, plus interest, premiums, fees and expenses (“Permitted Refinancing Debt”); provided that:
(A) if the Debt to be refinanced is Subordinated Debt, the new Debt, by its terms or by the terms of any agreement or instrument pursuant to which it is outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that results in such Preferred Stock being held by a Person other than the Debt to be refinanced is subordinated to the Notes or the Note Guarantees (as applicable),
(B) if the Debt to be refinanced is Subordinated Debt or unsecured Debt of the Company or a Guarantor Subsidiary Guarantor, the new Debt does not have a Stated Maturity prior to the earlier of (i) the Stated Maturity of the Notes and (ii) the Stated Maturity of the Debt to be refinanced, and the Average Life of the new Debt is at least equal to the earlier of (i) the Stated Maturity of the Notes and (ii) the remaining Average Life of the Debt to be refinanced,
(C) Debt Incurred pursuant to clauses (1), (2), (3), (6), (7), (9), (11), (12), (14) and (16) of this Section 4.11(b) may not be refinanced pursuant to this clause; and
(D) in no event may Debt of the Company or any sale or other transfer Subsidiary Guarantor be refinanced pursuant to this clause by means of any such Preferred Stock to new Debt of a Person Restricted Subsidiary that is not either a Subsidiary Guarantor;
(6) Hedging Agreements of the Company or a Guarantor shall be deemed, any Restricted Subsidiary entered into in each case, to constitute an issuance the ordinary course of such shares business for the purpose of Preferred Stock that was managing risks associated with the business of the Company or its Subsidiaries and not permitted by this clause (vii)for speculation;
(viii7) Debt of the Company or any Restricted Subsidiary with respect to (A) letters of credit and bankers’ acceptances, including letters of credit supporting performance, surety or appeal bonds, workers’ compensation claims, health, disability or other benefits to employees or former employees or their families or property, casualty or liability insurance or self-insurance, and letters of credit in connection with the maintenance of, or pursuant to the requirements of, environmental or other permits or licenses from governmental authorities, or other Debt with respect to reimbursement type obligations regarding workers’ compensation claims and (B) indemnification, adjustment of purchase price, earn-out or similar obligations incurred in connection with the acquisition or disposition of any business or assets;
(8) Debt of the Company and any Restricted Subsidiary outstanding on the Issue Date (and not otherwise constituting Permitted Debt under clauses (1) or (4) of this Section 4.11(b)), including the Convertible Notes then outstanding or incurred;
(9) the Guarantee by the Issuers Company or any Restricted Subsidiary of the Guarantors of Indebtedness Debt of the Company or a Restricted Subsidiary of the Company Company, to the extent that the guaranteed Debt was permitted to be incurred by another provision of this Section 4.09covenant; provided that if the Debt 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 Debt guaranteed;
(ix10) the incurrence of any Monetization Indebtedness[Reserved];
(x11) Debt arising from endorsing instruments of deposit and from the incurrence honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, in each case, in the ordinary course of business; provided that such Debt is extinguished within five business days of Incurrence;
(12) Debt of the Company or any Restricted Subsidiary consisting of its Restricted Subsidiaries the financing of Indebtedness to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereofinsurance premiums;
(xi13) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; orContribution Debt;
(xii14) the incurrence by Debt of the Company or any Subsidiary Guarantor, which may include Capital Leases, Incurred on or after the Issue Date no later than 180 days after the date of its Restricted Subsidiaries acquisition, or completion of additional Indebtedness installation, construction, repair or improvement of property, for the purpose of financing all or any part of the cost of the acquisition, installation, construction, repair or improvement of property and Permitted Refinancing Debt with respect thereto 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), outstanding on the date of Incurrence not to exceed $50.0 million10.0 million at any one time outstanding;
(15) Acquired Debt; provided that after giving effect to such Acquired Debt on a Pro Forma Basis (including pro forma application of the proceeds therefrom), the Consolidated Total Leverage Ratio for such Restricted Operating Group is equal to or less than 2.50 to 1.00 or is equal to or less than the Consolidated Total Leverage Ratio for such Restricted Operating Group prior to the consummation of the transaction pursuant to which such Acquired Debt is Incurred;
(16) Debt of any Restricted Operating Group in an aggregate principal amount for such Restricted Operating Group outstanding at the date of Incurrence not to exceed the greater of (or accreted valuei) $20.0 million and (ii) an amount such that, as applicable) of Indebtedness of all Restricted Subsidiaries on a Pro Forma Basis (including pro forma application of the Company that are not Guarantors incurred pursuant to this clause (xiiproceeds therefrom), together with all the Consolidated Total Leverage Ratio for such Restricted Operating Group is equal to or less than 2.50 to 1.00, and Permitted Refinancing Indebtedness Debt incurred by such Restricted Operating Group with respect thereto;
(17) Debt in connection with Permitted Transactions entered into by Insurance Subsidiaries; and
(18) Non-Recourse Debt of Insurance Subsidiaries incurred in the ordinary course of business resulting from the sale or securitization of non-admitted assets, policy loans, CBOs and CMOs.
(c) Notwithstanding any other provision of this Section 4.11, for purposes of determining compliance with this covenant, increases in Debt solely due to refund, refinance fluctuations in the exchange rates of currencies will not be deemed to exceed the maximum amount that the Company or replace any such Indebtedness, shall not at any time exceed $25.0 milliona Restricted Subsidiary may Incur under this covenant. For purposes of determining compliance with this Section 4.09any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt or the financial measure denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred; provided that if such Debt is Incurred to refinance other Debt denominated or based on a financial measure in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Debt does not exceed the principal amount of such Debt being refinanced (including, for the avoidance of doubt, interest, premium, fees and expenses). The principal amount of any Debt Incurred to refinance other Debt, if Incurred in a different currency from the Debt being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Debt is denominated that is in effect on the date of such refinancing.
(d) In the event that any proposed Indebtedness an item of Debt meets the criteria of more than one of the categories types of Permitted Debt described in this covenant, the Company, in its sole discretion, will classify items of Debt and will only be required to include the amount and type of such Debt in one of such clauses and the Company will be entitled to divide and classify an item of Debt in more than one of the types of Debt described in this covenant, and may, at any time after such Incurrence (based on circumstances existing at such time), change the classification of an item of Debt (or any portion thereof) to any other type of Debt described in this covenant at any time. If any Contribution Debt is redesignated as Incurred under any provision other than clause (13) of paragraph (b), the related issuance of Equity Interests may be included in any calculation under paragraph Section 4.09(a)(3)(B).
(e) Neither the Company nor any Subsidiary Guarantor may Incur any Debt that is subordinated in right of payment to other Debt of the Company or the Subsidiary Guarantor unless such Debt is also subordinated in right of payment to the Notes or the relevant Note Guarantee, as applicable, on substantially identical terms. This does not apply to distinctions between categories of Debt that exist by reason of any Liens or Guarantees securing or in favor of some but not all of such Debt, or by reason of Liens of different seniority or priority.
(f) Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount or liquidation preference, the payment of interest or dividends in the form of additional Debt, shares of Preferred Stock or Disqualified Equity Interests or the reclassification of commitments or obligations not treated as Debt due to a change in GAAP will not be deemed to be an Incurrence of Debt for purposes of this covenant. Notwithstanding any other provision of this covenant, the maximum amount of then-outstanding Debt permitted to be Incurred under any provision of this covenant shall not be deemed to be exceeded solely as a result of fluctuations in the applicable EBITDA or Loan Collateral amount or value subsequent to the date of such Incurrence.
(g) Additionally, in the case of clauses (i1), (14), (15) through and (xii16) aboveof Section 4.11(b), or is entitled the aggregate amount of Debt permitted to be incurred pursuant to Section 4.09(a), the Company under such clause shall be permitted to classify at increased by the time amount of its incurrence interest, premiums, fees and expenses refinanced, paid or incurred in connection with any refinancing of Debt incurred under such item of Indebtedness in any manner that complies with this Section 4.09. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued under this Indenture shall be deemed to have been incurred on such date in reliance on the exception provided by clause (i)clause.
Appears in 1 contract
Sources: Indenture (Hc2 Holdings, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, incur create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, "incur") any Indebtedness (including Acquired Debt), and that the Company shall not permit any of its Restricted Subsidiaries to issue any Preferred Stockshares of preferred stock; provided, however, that the Company or any Guarantor and its Restricted Subsidiaries may incur Indebtedness at any time prior to January 1, 2009 if the Consolidated Interest Coverage Ratio for the Company's Consolidated Leverage Ratio 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 would have been at least 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 at the time of the incurrence beginning of such Indebtedness is less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 to 1.0.four-quarter period. The foregoing provisions shall not apply to:
(b) So long as no Default would be caused thereby, Section 4.09(a) shall not prohibit the incurrence or issuance of any of the following (collectively, "PERMITTED DEBT"):
(ia) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness under Credit Facilities (and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) in an aggregate principal amount not to exceed $125.0 million at any one time outstanding pursuant to this clause (i) the Revolving Credit Facility, (with letters of credit being deemed to have a principal amount equal to ii) Capital Lease Obligations and (iii) purchase money or mortgage financings;
(b) the maximum potential liability of incurrence by the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary of the Company to permanently repay any such Indebtedness pursuant to Section 4.10;
(ii) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture;
(ivc) the incurrence by the Company or any and its Restricted Subsidiaries of Hedging Obligations;
(d) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligationsthe Notes, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to Subsidiary Guarantees and this clause (iv), not to exceed $60.0 million at any time outstandingIndenture;
(ve) the incurrence by of intercompany Indebtedness between or among the Company or any Restricted Subsidiary of the Company of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under this Section 4.09(a) or clauses (ii), (iii), (iv), (v) or (xii) of this Section 4.09(b);
(vi) the incurrence by the Company or and any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Wholly Owned Restricted Subsidiaries; provided, however, that:
(a) if the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person provided that is not the Company, Co-Issuer Corp. or a Guarantor, such Indebtedness must be unsecured and 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 Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or 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 Company or a Wholly Owned Restricted Subsidiary thereof and (ii) of the Company, or any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a 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 (vi);
(vii) the issuance of shares of Preferred Stock by any of the Company's Restricted Subsidiaries to the Company or to a Guarantor; provided that (i) any subsequent issuance or transfer of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not permitted by this clause (vii);
(viii) the Guarantee by the Issuers or any of the 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;
(ix) the incurrence of any Monetization Indebtedness;
(x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or
(xii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xii), not to exceed $50.0 million; provided that the aggregate principal amount (or accreted value, as applicable) of Indebtedness of all Restricted Subsidiaries of the Company that are not Guarantors incurred pursuant to this clause (xii), together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not at any time exceed $25.0 million. For purposes of determining compliance with this Section 4.09, in the event that any proposed 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 Section 4.09(a), the Company shall be permitted to classify at the time of its incurrence such item of Indebtedness in any manner that complies with this Section 4.09. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued under this Indenture shall be deemed to have been incurred on such date in reliance on the exception provided by clause (i)such
Appears in 1 contract
Sources: Indenture (Greyhound Lines Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall not nor will it permit any of its Restricted Subsidiaries toSubsidiaries, directly or indirectly, incur to Incur any Indebtedness (including Acquired Debt), and the Company shall not permit any of its Restricted Subsidiaries to issue any Preferred Stock; provided, however, that the Company or any Guarantor may incur Indebtedness at any time prior to January 1, 2009 if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 to 1.0.
(b) So long as no Default would be caused therebyNotwithstanding the provisions of Section 4.11(a), Section 4.09(a) shall not prohibit the incurrence or issuance of Company and, to the extent provided below, any of Subsidiary may Incur the following (collectively, "PERMITTED DEBT"):
“Permitted Debt”): (i1) the incurrence by Debt (which may include letters of credit) of the Company or any Subsidiary Guarantor constituting First-Out Obligations Incurred pursuant to the Revolving Credit Agreement for which the Authorized Representative of Indebtedness under Credit Facilities (such Debt holders has executed a joinder to the Collateral Trust Agreement as provided therein and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) Permitted Refinancing Debt with respect thereto in an aggregate principal amount outstanding at any one time outstanding pursuant to this clause (i) (with letters the date of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) Incurrence not to exceed $950.0 20.5 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by ; (2) intercompany Debt between or among the Company or any Restricted Subsidiary of the Company to permanently repay any such Indebtedness pursuant to Section 4.10;
(ii) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture;
(iv) the incurrence 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, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $60.0 million at any time outstanding;
(v) the incurrence by the Company or any Restricted Subsidiary of the Company of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under this Section 4.09(a) or clauses (ii), (iii), (iv), (v) or (xii) of this Section 4.09(b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries; provided, however, that:
: (aA) if the Company or any Subsidiary Guarantor is the an obligor on such Indebtedness Debt and such Indebtedness is held by a Person that the payee is not the Company, Co-Issuer Corp. Company or a Subsidiary Guarantor, such Indebtedness Debt must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor;
(b) Indebtedness owed , in each case pursuant to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or a GuarantorIntercompany Subordination Agreement; and
and (B) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness Debt being held by a Person other than the Company or a Restricted Subsidiary thereof of the Company and (ii) any sale or other transfer of any such Indebtedness Debt to a Person that is not either the Company or a Restricted Subsidiary thereofof the Company, shall will be deemed, in each case, to constitute an incurrence of such Indebtedness Debt by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause Section 4.11(b)(2); (vi);
(vii3) the issuance unsecured Debt of shares of Preferred Stock by any of the Company's Restricted Subsidiaries to the Company or any Subsidiary Guarantor (including without limitation Disqualified Equity Interests of such Person) and Permitted Refinancing Debt with respect thereto in an aggregate principal amount outstanding on the date of incurrence not to a Guarantorexceed the greater of $5.0 million; provided that such Debt has a Stated Maturity after the Stated Maturity of the Notes; (i4) any subsequent issuance or transfer Debt of the Company pursuant to (a) the Notes issued on the Issue Date, (b) Additional Notes in an aggregate principal amount not to exceed $2,073,143, (c) PIK Notes issued in payment of interest accrued on the Notes during the First Interest Period pursuant to the terms hereof, (d) additional New Convertible Secured Notes issued as payment in kind of interest accrued on the New Convertible Secured Notes during the interest period thereunder ending February 15, 2026, pursuant to the terms thereof, and (e) Debt of any Equity Interests Subsidiary Guarantor pursuant to a Note Guarantee (including of permitted Additional Notes and PIK Notes) or a guarantee of New Convertible Secured Notes (including the additional New Convertible Secured Notes referenced in this clause); (5) Debt constituting an extension or renewal of, replacement of, or substitution for, or issued in exchange for, or the net proceeds of which are used to repay, redeem, repurchase, refinance or refund, 54 including by way of defeasance (all of the foregoing, for purposes of this clause, “refinance”) then outstanding Debt (including, but not limited to, the CGIC Note, the DBM Global Credit Agreement, the Existing Spectrum Promissory Notes and the R2 Note) in an amount not to exceed the principal amount (including any PIK Interest thereunder) of the Debt so refinanced, plus interest, premiums, fees and expenses (“Permitted Refinancing Debt”); provided that: (A) if the Debt to be refinanced is Subordinated Debt, the new Debt, by its terms or by the terms of any agreement or instrument pursuant to which it is outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that results in such Preferred Stock being held by a Person other than the Debt to be refinanced is subordinated to the Notes or the Note Guarantees (as applicable), (B) if the Debt to be refinanced is Subordinated Debt or unsecured Debt of the Company or a Guarantor Subsidiary Guarantor, the new Debt does not have a Stated Maturity prior to the earlier of (i) the Stated Maturity of the Notes and (ii) the Stated Maturity of the Debt to be refinanced, and the Average Life of the new Debt is at least equal to the earlier of (i) the Stated Maturity of the Notes and (ii) the remaining Average Life of the Debt to be refinanced, (C) Debt Incurred pursuant to clauses (2), (3), (4), (6), (7), (9), (11), (12), (14), (15) and (16) of this Section 4.11(b) may not be refinanced pursuant to this clause; and (D) in no event may Debt of the Company or any sale or other transfer Subsidiary Guarantor be refinanced pursuant to this clause by means of any such Preferred Stock to new Debt of a Person Subsidiary that is not either a Subsidiary Guarantor; (6) Hedging Agreements of the Company or a Guarantor shall be deemedany Subsidiary entered into in the ordinary course of business for the purpose of managing risks associated with the business of the Company or its Subsidiaries and not for speculation; (7) Debt of the Company or any Subsidiary with respect to (A) letters of credit and bankers’ acceptances, including letters of credit supporting performance, surety or appeal bonds, workers’ compensation claims, health, disability or other benefits to employees or former employees or their families or property, casualty or liability insurance or self-insurance, and letters of credit in each caseconnection with the maintenance of, or pursuant to constitute an issuance the requirements of, environmental or other permits or licenses from governmental authorities, or other Debt with respect to reimbursement type obligations regarding workers’ compensation claims and (B) indemnification, adjustment of such shares purchase price, earn-out or similar obligations incurred in connection with the acquisition or disposition of Preferred Stock that was any business or assets; (8) Debt of the Company and any Subsidiary outstanding on the Issue Date (and not permitted by otherwise constituting Permitted Debt under clauses (1), (4), (19), (20), (21) or (22) of this clause Section 4.11(b)); (vii);
(viii9) the Guarantee by the Issuers Company or any Subsidiary of the Guarantors of Indebtedness Debt of the Company or a Restricted Subsidiary of the Company Company, to the extent that the guaranteed Debt was permitted to be incurred by another provision of this Section 4.09;
(ix) covenant; provided that if the incurrence of any Monetization Indebtedness;
(x) Debt being guaranteed is subordinated to or pari passu with the incurrence by Notes, then the Company Guarantee must be subordinated or any of its Restricted Subsidiaries of Indebtedness to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or
(xii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted valuepari passu, 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 $50.0 million; provided that the aggregate principal amount (or accreted value, same extent as applicable) of Indebtedness of all Restricted Subsidiaries of the Company that are not Guarantors incurred pursuant to this clause (xii), together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not at any time exceed $25.0 million. For purposes of determining compliance with this Section 4.09, in the event that any proposed 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 Section 4.09(a), the Company shall be permitted to classify at the time of its incurrence such item of Indebtedness in any manner that complies with this Section 4.09. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued under this Indenture shall be deemed to have been incurred on such date in reliance on the exception provided by clause (i)guaranteed;
Appears in 1 contract
Sources: Indenture (INNOVATE Corp.)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, incur create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and the Company shall will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any Preferred Stockshares of preferred stock; provided, however, that the Company or any Guarantor may incur Indebtedness at any time prior to January 1, 2009 if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 7.0 to 1.0 and, at any time on or after January 1, 2009, if the Company's Consolidated Leverage Ratio at the time of the incurrence of such Indebtedness is less than 6.0 to 1.0.,
(b) So long as no Default would be caused thereby, The provisions of Section 4.09(a4.7(a) hereof shall not prohibit the incurrence or issuance of any of the following items of Indebtedness (collectively, "PERMITTED DEBT"):
“Permitted Debt”): (i1) the incurrence by the Company of Indebtedness under Credit Facilities (and the incurrence by Co-Issuer Corp. and the Guarantors of Guarantees thereof) Indebtedness under the Credit Agreement in an aggregate principal amount outstanding at any one time outstanding pursuant not to this clause exceed the original aggregate amount of total revolving commitments specified in the Credit Agreement as of the Closing Date (ifor the avoidance of doubt, such amount does not include any incremental commitments or other commitments); (2) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of incurrence by the Company and its Restricted Subsidiaries thereunder) not to exceed $950.0 million, less the Guarantors of the Notes and Note Guarantees in the aggregate principal amount of all Net Proceeds of Asset Sales applied to be issued on the Closing Date; (3) the incurrence by the Company or any of its Restricted Subsidiary Subsidiaries of the Company to permanently repay Existing Indebtedness and any such Permitted Refinancing Indebtedness that is incurred pursuant to Section 4.10;
or in lieu of a commitment in existence as of the Closing Date; (ii) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture;
(iv4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by (including Capital Lease Obligations, mortgage financings or financings, purchase money obligations, in each case, obligations and government bond financings) incurred for to finance (or to reimburse the purpose Company or any of financing its Restricted Subsidiaries for) all or any part of the purchase price or cost of construction installation or improvement of property, plant or equipment any Aircraft Asset used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $60.0 million at any time outstanding;
(v) the incurrence by the Company or any Restricted Subsidiary of the Company of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under this Section 4.09(a) or clauses (ii), (iii), (iv), (v) or (xii) of this Section 4.09(b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing or leased to and held by the Company or any of its Restricted Subsidiariesthird party; provided, however, that:
(a) if the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is held by a Person that is not the Company, Co-Issuer Corp. or a Guarantor, such Indebtedness must be unsecured and 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 Note Guarantee, in the case of a Guarantor;
(b) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or 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 Company or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a 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 (vi);
(vii) the issuance of shares of Preferred Stock by any of the Company's Restricted Subsidiaries to the Company or to a Guarantor; provided that (i) any subsequent issuance or transfer of any Equity Interests that results in such Preferred Stock being held by a Person other than the Company or a Guarantor and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Guarantor shall be deemed, in each case, to constitute an issuance of such shares of Preferred Stock that was not permitted by this clause (vii);
(viii) the Guarantee by the Issuers or any of the 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;
(ix) the incurrence of any Monetization Indebtedness;
(x5) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to the extent the net proceeds thereof are promptly deposited to (i) defease all outstanding Notes pursuant to Article Eight hereof or (ii) satisfy and discharge this Indenture pursuant to Article 11 hereof;
(xi) the issuance of up to 3,500,000 shares of AMC Preferred Stock, any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire such AMC Preferred Stock pursuant to Section 4.07(b)(iv), and any subsequent issuance of Equity Interests (other than Disqualified Stock) on any of the foregoing as a dividend; or
(xii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount up to the sum of: (or accreted valueA) the greater of (x) $500.0 million and (y) 100% of the Company’s Consolidated EBITDAR for the most recent four consecutive fiscal quarters ending prior to the date of such determination (as calculated on a pro forma basis); plus (B) all voluntary prepayments, debt buybacks (up to the actual amount of the resulting reduction in Indebtedness), and payments utilizing the yank a bank provisions, 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 $50.0 million; provided that the aggregate principal amount (or accreted value, as applicable) of Indebtedness of all Restricted Subsidiaries of the Company that are not Guarantors incurred pursuant to this clause (xii), together with all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness, shall not at any time exceed $25.0 million. For purposes of determining compliance with this Section 4.09, in the event that any proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xii) above, or is entitled permitted to be incurred pursuant to Section 4.09(a), the Company shall be permitted to classify at the time of its incurrence such item of Indebtedness in any manner that complies with this Section 4.09. Indebtedness under the Credit Agreement outstanding on and the date on which Notes are first issued under this Indenture shall be deemed other Loan Documents consisting of the issuance or incurrence of any senior or subordinated Indebtedness, to have been incurred on such date in reliance on the exception provided extent accompanied by clause a permanent reduction of revolving commitments and to the extent not made with the proceeds of long term Indebtedness (iother than revolving indebtedness); plus
Appears in 1 contract
Sources: Indenture (Allegiant Travel CO)