Incurrence of Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence. (b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence. (c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis). (d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following: (1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing; (2) Indebtedness owed to: (A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or (B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B); (3) the Notes to be issued on the Issue Date; (4) Indebtedness outstanding as of the Issue Date; (5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if: (A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and (B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);
Appears in 3 contracts
Sources: Indenture (MGM Growth Properties Operating Partnership LP), Indenture (MGM Growth Properties Operating Partnership LP), Indenture (MGM Growth Properties Operating Partnership LP)
Incurrence of Indebtedness. (a) The Company will notnot create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise suffer to exist (collectively, “incur”), any Indebtedness (including any Acquired Debt), other than Permitted Indebtedness, unless such Indebtedness is incurred by the Company and the Company’s Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters for which financial results are available immediately preceding the date of incurrence of such Indebtedness, taken as one period (and after giving pro forma effect to: (i) the incurrence of such Indebtedness and (if applicable) the application of the net proceeds therefrom, including to refinance other Indebtedness, as if such Indebtedness was incurred, and the application of such proceeds occurred, at the beginning of such four-quarter period; (ii) the incurrence, repayment or retirement of any other Indebtedness by the Company since the first day of such four-quarter period as if such Indebtedness was incurred, repaid or retired at the beginning of such four-quarter period (except that, in making such computation, the amount of Indebtedness under any revolving credit facility shall be computed based upon the average daily balance of such Indebtedness during such four-quarter period); (iii) in the case of Acquired Debt, the related acquisition; and (iv) any acquisition or disposition by the Company and its Subsidiaries of any company or any business or any assets out of the ordinary course of business, or any related repayment of Indebtedness, in each case since the first day of such four-quarter period, assuming such acquisition or disposition and any such related payments had been consummated on the first day of such four-quarter period), would be at least 2.0:1. The Company will not permit any of its Restricted Subsidiaries to, Incur to incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(BPermitted Subsidiary Indebtedness);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);.
Appears in 3 contracts
Sources: Indenture (Bally Franchise RSC Inc), Indenture (Bally Franchise RSC Inc), Indenture (Bally Total Fitness Holding Corp)
Incurrence of Indebtedness. (a) The Except as otherwise provided in Section 14(b), for so long as any shares of Redeemable Convertible Preferred Stock are outstanding, the Company will not, and will not permit any of its Restricted Subsidiaries to, Incur without the consent of the Holders of at least 66-2/3% of the outstanding voting power of the Redeemable Convertible Preferred Stock, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness if(including Acquired Debt).
(b) So long as the Company has declared and paid all dividends on the Redeemable Convertible Preferred Stock for all prior Dividend Periods, immediately after giving effect to Section 14(a) will not prohibit the Incurrence incurrence of such Indebtedness and the receipt and application any of the proceeds therefromfollowing items of Indebtedness (collectively, “PERMITTED INDEBTEDNESS”):
(i) the aggregate principal amount of all outstanding Indebtedness of incurrence by the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued existing on the Issue Date;
(4ii) the incurrence by the Company or any Restricted Subsidiary of Permitted Refinancing Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extendrefund, refinance, renew, refinance or replace, defease, discharge or refund other outstanding Indebtedness (other than clauses intercompany Indebtedness) that was permitted to be incurred under Section 14(a) or sub-section (1i), sub-section (2), viii) or this sub-section (6), (10), (11) and (13ii) of this Section 4.08(d14(b);
(iii) plus the aggregate amount incurrence by the Company or any of feesits Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, underwriting discountshowever, accrued that (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 unpaid (B) 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 sub-section;
(iv) the accrual of interest, premiums accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock; provided, however, in each such case that the amount thereof is included in Fixed Charges of the Company as accrued;
(v) any obligations in respect of completion bonds, performance bonds, bid bonds, appeal bonds, surety bonds, bankers acceptances, letters of credit, insurance obligations or bonds and other costs similar bonds and expenses Incurred obligations incurred by the Company or any Restricted Subsidiary in the ordinary course of business and any guaranties or letters of credit functioning as or supporting any of the foregoing bonds or obligations;
(vi) any obligation under Interest Rate Agreements, Currency Agreements and Commodity Agreements; provided, however, that such Interest Rate Agreements, Currency Agreements and Commodity Agreements are related to business transactions of the Company or its Restricted Subsidiaries entered into in the ordinary course of business and are entered into for bona fide hedging purposes (and not financing or speculative purposes) of the Company or its Restricted Subsidiaries (as determined in good faith by the Board of Directors, or senior management of the Company);
(vii) any obligation arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence; and
(viii) Indebtedness of a Restricted Subsidiary incurred after the Issue Date and outstanding on the date on which such Subsidiary was acquired by the Company (other than Indebtedness incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by the Company) and excluding therefrom any of such Indebtedness that is extinguished, retired or repaid in connection with such refinancing acquisition; provided, however, that on the date of such acquisition and after giving pro forma effect thereto, the Company would have been able to incur at least $1.00 of additional Indebtedness pursuant to Section 14(a).
(any such actionc) For purposes of determining compliance with this Section 14:
(i) in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in sub-sections (i) through (viii) of Section 14(b) above, or is entitled to “Refinance”be incurred pursuant to Section 14(a), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, Company will be permitted under this clause to classify and reclassify such item of Indebtedness (5or any portion thereof) in any manner that complies with Section 14, and only if:be required to include the amount and type of such Indebtedness in one of such clauses;
(Aii) 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;
(iii) Indebtedness permitted by this covenant need not be permitted solely by reference to one provision permitting such new Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this covenant permitting such Indebtedness, by its terms or by ;
(iv) the terms amount of any agreement or instrument pursuant to which such new Indebtedness issued at a price that is issued or remains outstanding, is expressly made subordinate in right of payment less than the principal amount thereof will be equal to the Notes at least to amount of the extent that the Indebtedness to be Refinanced is subordinated to the Notesliability in respect thereof determined in accordance with GAAP; and
(Bv) Indebtedness of any Person existing at the time such new Person becomes a Restricted Subsidiary shall be deemed to have been incurred by the Company and the Restricted Subsidiary at the time such Person becomes a Restricted Subsidiary.
(d) For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, determined as the U.S. dollar equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided, however, that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-dominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of Incurrence such refinancing, such U.S. dollar-dominated restriction shall be deemed not to have been exceeded so long as the principal amount of such new Indebtedness, refinancing Indebtedness does not mature prior to exceed the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life principal amount of such new Indebtedness is at least equal to being refinanced. Notwithstanding any other provision of this covenant, the remaining Average Life maximum amount of the Subordinated Indebtedness to that may be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor incurred pursuant to this clause (5);covenant shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Permitted Refinancing Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Permitted Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.
Appears in 2 contracts
Sources: Investment Agreement (Transmeridian Exploration Inc), Investment Agreement (Transmeridian Exploration Inc)
Incurrence of Indebtedness. (a) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively "incur") any Indebtedness ifIndebtedness, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur issue any Subsidiary Disqualified Stock; provided, however, that the Issuer and its Restricted Subsidiaries may incur Indebtedness (and such Indebtedness may be incurred pursuant to this paragraph without regard, in the case of any particular category of Indebtedness, to any limitation set forth with respect to Indebtedness of such category in any of items (i) through (xvi) set forth below in this Section 4.09) or any Secured Indebtedness issue shares of Disqualified Stock if, immediately :
(i) no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to the Incurrence of such Subsidiary Indebtedness incurrence or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.issuance; and
(cii) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to such incurrence or issuance, the Incurrence Ratio of such Indebtedness and the receipt and application Cash Flow to Fixed Charges of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis Issuer would not be less than 2.0 to 1.0 1.5:1 (calculated on a Pro Forma Basis)pro forma basis to include such Indebtedness and related cash flows as of the end of the most recent fiscal quarter of the Issuer with respect to which financial statements of the Issuer have been furnished to the Trustee pursuant to Section 4.03 hereof.
(d) Notwithstanding clauses (a), (b) and (c) The provisions of the first paragraph of this Section 4.08, 4.09 will not apply to the Company incurrence of any of the following items of Indebtedness (collectively "Permitted Debt"):
(i) the incurrence by the Issuer or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company under one or any of the Subsidiary Guarantors outstanding under more New Credit Facilities Facilities, and the issuance or creation of letters of credit thereunder from time to time, in an aggregate principal or stated amount outstanding at any time not to exceed $60 million;
(ii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Existing Indebtedness;
(iii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness pursuant to the terms and bankers’ acceptances thereunder provisions, or in connection therewith with the implementation, of the Plan;
(with iv) the incurrence by the Issuer of Indebtedness represented by the Notes and the Tranche A Notes;
(v) the incurrence of Non-Recourse Debt by any Operating Company or Investment Vehicle;
(vi) Permitted Sale/Leaseback Transactions;
(vii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Lease Obligations under leases for equipment or other personal property not to exceed $10 million in aggregate principal or stated amount outstanding at any time;
(viii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness;
(ix) Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries in respect of surety bonds, performance or bid bonds or letters of credit issued in the ordinary course of business, including, without limitation, those in respect of workers' compensation claims or self-insurance, in an aggregate amount outstanding at any time not to exceed $25 million;
(x) the incurrence by the Issuer or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Issuer and bankers acceptances being deemed to have a principal amount equal any of its Restricted Subsidiaries (subject to the face amount thereofprovisions of clauses (i) and (ii) of item (a) of the definition of the term "Permitted Investments" herein), provided that such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes;
(xi) the Guaranty by the Issuer or any of its Restricted Subsidiaries of Indebtedness of the Issuer or a Restricted Subsidiary of the Issuer (other than a Guaranty by the Issuer of Indebtedness of an Operating Company or an Investment Vehicle or a Guaranty by a Restricted Subsidiary of Indebtedness of an Operating Company or an Investment Vehicle that is not a member of the same Operating Company Group as the guaranteeing Subsidiary) that was permitted by this Indenture to be incurred;
(xii) Indebtedness of any Restricted Subsidiary of the Issuer existing at the time such Person becomes a Restricted Subsidiary of the Issuer (except for any such Indebtedness incurred in contemplation of or to finance the acquisition of such Subsidiary);
(xiii) Indebtedness under any Swap;
(xiv) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness under short-term overdraft lines of credit or similar arrangements entered into in the ordinary course of business, in each case associated with the Issuer's cash management program;
(xv) the incurrence by Service Companies of Indebtedness in respect of credit card obligations or services incurred in the ordinary course of business; and
(xvi) the incurrence by the Issuer or any of its Restricted Subsidiaries of additional Indebtedness, in an aggregate principal amount (or accreted value, if applicable) at any one time outstanding not to exceed the sum $5 million. For purposes of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences determining compliance with this Section 4.09, if an item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvi) above or is entitled to be incurred pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) first paragraph of this Section 4.08(d)) plus 4.09, the aggregate amount Issuer may, in its sole discretion, classify such item of feesIndebtedness in any manner that complies with this Section 4.09, underwriting discounts, accrued and unpaid such item of Indebtedness will be treated as having been incurred pursuant to one or more of such clauses and/or pursuant to the first paragraph hereof in accordance with such classification. Neither the accrual of interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed nor the amount so Refinanced; provided that Indebtedness, the proceeds accretion of which are used to Refinance Subordinated Indebtednessaccreted value, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness deemed to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as an incurrence of the date Indebtedness for purposes of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);Section 4.09.
Appears in 2 contracts
Sources: Indenture (Pg&e National Energy Group Inc), Indenture (Pg&e National Energy Group Inc)
Incurrence of Indebtedness. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, (i) Incur any Indebtedness if(including Acquired Debt) or (ii) issue any Disqualified Stock; provided, immediately after giving effect to however, that the Incurrence of such Indebtedness Issuer and the receipt and Restricted Subsidiaries may Incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, if the Consolidated Fixed Charge Coverage Ratio for the Issuer’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is Incurred or such Disqualified Stock is issued, as the case may be, would have been at least 2.0:1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the aggregate principal amount additional Indebtedness had been Incurred or such Disqualified Stock had been issued, as the case may be at the beginning of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrencesuch four-quarter period.
(b) The Company will notNotwithstanding the foregoing, and Section 7.10(a) will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to prohibit the Incurrence of such Subsidiary any of the following (collectively, “Permitted Debt”):
(i) the Incurrence by the Issuer and any Guarantor of Indebtedness under this Indenture or Secured Indebtedness and the receipt and application letters of the proceeds therefrom, the credit under Credit Facilities in an aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face maximum potential liability of the Issuer and any Guarantor thereunder) that, at the time of and after giving effect to such Incurrence and all other Incurrences made under this paragraph (i) since the Issue Date and which remain outstanding, does not exceed the greater of (A) US$150 million or (B) three times the Issuer’s Consolidated EBITDA for the most recently ended four full fiscal quarters for which internal financial statements are available (determined on a pro forma basis after giving effect to a pro forma application of the net proceeds of such Incurrence and to such other pro forma adjustments as are consistent with those set forth in the definition of “Consolidated Fixed Charge Coverage Ratio”), and in each case such amounts are to be reduced by the aggregate principal amount thereofof Notes and any Additional Notes outstanding on the date of such Incurrence (Indebtedness Incurred pursuant to this paragraph (i) being referred to as “Permitted Pari Indebtedness”);
(ii) the Incurrence by the Issuer or any Restricted Subsidiary of Indebtedness represented by Lease Obligations in an aggregate principal amount that, at the time of and after giving effect to such Incurrence and all other Incurrences made under this paragraph (i) since the Issue Date and which remain outstanding (including all Permitted Refinancing Indebtedness Incurred to refund, refinance, replace, defease or discharge any Lease Obligations Incurred pursuant to this paragraph (i)), does not exceed the greater of (A) $75 million and (B) 20% of the Issuer’s Consolidated Net Tangible Assets (determined as of the date of such Incurrence and including any right of use assets acquired in connection with such Lease Obligations);
(iii) the Incurrence by the Issuer or any Restricted Subsidiary of Lease Obligations in the ordinary course of business in respect of (A) retail locations for dispensaries, (B) cultivation and/or manufacturing facilities, or (C) equipment that will be used at dispensaries and/or cultivation and manufacturing facilities;
(iv) the Incurrence by the Issuer or any Restricted Subsidiary of Indebtedness represented by purchase money obligations incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation, development or improvement of property, plant or equipment used in the business of the Issuer or any of its Restricted Subsidiaries, in an aggregate principal amount that, at any one the time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that and after giving pro forma effect to such Incurrence and all other Incurrences made under this clause (iv) since the Issue Date and which remain outstanding (including all Permitted Refinancing Indebtedness Incurred to refund, refinance, replace, defease or discharge any such incurrences of Indebtedness Incurred pursuant to this clause (yiv)), does not exceed the Company and its Restricted Subsidiaries are in compliance with paragraphs greater of (a) $40 million and (b) above) plus 10% of the Issuer’s Consolidated Net Tangible Assets (2) in determined as of the case date of such Incurrence and including any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection assets acquired with such refinancingIndebtedness);
(2v) the guarantee by the Issuer or any Restricted Subsidiary of non-recourse debt of an Unrestricted Subsidiary or joint venture in which the Issuer or a Restricted Subsidiary has an ownership interest; provided that recourse on such guarantee is limited to Liens on and pledges of the Equity Interests of such Unrestricted Subsidiary or joint venture;
(vi) the Incurrence of Existing Indebtedness;
(vii) the Incurrence by the Issuer and the Guarantors of Indebtedness owed torepresented by the Notes and the Subsidiary Guarantees, in each case, issued on the Issue Date, and any subsequent Incurrence by a Guarantor of Indebtedness represented by a Subsidiary Guarantee;
(viii) the Incurrence by the Issuer or any Restricted Subsidiary of the Issuer of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease or discharge Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be Incurred under Section 7.10(a) or clauses (ii), (iv), (vi) and (xv) of this Section 7.10(b);
(ix) the Incurrence by the Issuer or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Issuer or any of its Restricted Subsidiaries; provided, however, that:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company Issuer or any Subsidiary Guarantor is an obligorthe obligor on such Indebtedness, such Indebtedness must be unsecured and is expressly subordinated to the Indebtedness is subordinated prior payment in right full in cash of payment all Obligations with respect to the Notes, in the case of the CompanyIssuer, or the Note any Subsidiary Guarantee, in the case of a Subsidiary Guarantor Guarantor;
(except B) such Indebtedness owed to the extent prohibited by applicable Gaming Law)Issuer or any Guarantor must be unsubordinated obligations, unless the obligor under such Indebtedness is the Issuer or a Guarantor; and provided further and
(1) any subsequent issuance or transfer of Equity Interests that any event which results in any such Restricted Subsidiary ceasing to be Indebtedness being held by a Person other than the Issuer or a Restricted Subsidiary thereof and (2) any sale or any subsequent other transfer of any such Indebtedness (other than to a Person that is not either the Company Issuer or any other a Restricted Subsidiary) shall Subsidiary thereof, will be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Issuer or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (2)(BSection 7.10(b)(ix);
(3x) the Notes issuance by any Restricted Subsidiary to be issued on the Issue Date;
(4) Indebtedness outstanding as Issuer or to any of the Issue Date;
(5) Indebtedness issued in exchange forits Restricted Subsidiary of any preferred stock or Disqualified Stock; provided, or the net proceeds of which are used to extendhowever, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) any subsequent issuance or transfer of Equity Interests that results in any such new Indebtedness, preferred stock or Disqualified Stock being held by its terms a Person other than the Issuer or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);thereof and
Appears in 2 contracts
Sources: Trust Indenture (Columbia Care Inc.), Trust Indenture (Columbia Care Inc.)
Incurrence of Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be greater less than 65% of Adjusted Total Assets as of any date of Incurrence2.0 to 1.0.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses paragraphs (a), ) and (b) and (c) of this Section 4.08above, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:following (“Permitted Debt”):
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under the Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing750.0 million;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);
Appears in 2 contracts
Sources: Indenture (CyrusOne Inc.), Indenture (CyrusOne Inc.)
Incurrence of Indebtedness. (a) The Company will Holdings shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries todirectly or indirectly, Incur any Subsidiary Indebtedness Indebtedness; provided, however, that Holdings, the Borrower or any Secured Subsidiary Guarantor may Incur Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will notincluding Acquired Indebtedness), and will any Restricted Subsidiary that is not permit any of its Restricted Subsidiaries toa Subsidiary Guarantor may Incur Acquired Indebtedness, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Consolidated Leverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 6.25 to 1.0 (calculated on a Pro Forma Basis)1.
(db) Notwithstanding clauses Section 9.03(a) shall not prohibit the Incurrence of any of the following items of Indebtedness (acollectively, “Permitted Debt”):
(i) the Incurrence by Holdings, the Borrower or any Subsidiary Guarantor of Indebtedness under Credit Facilities in an aggregate amount at any one time outstanding pursuant to this clause (i) not to exceed the greater of (x) $1,750.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by Holdings or any Restricted Subsidiary thereof to permanently repay any such Indebtedness pursuant to Section 4.02(c) and (y) 300% of the Consolidated Cash Flow of Holdings, its Restricted Subsidiaries and its Designated Entities for the Four Quarter Period;
(ii) the Incurrence of Existing Indebtedness;
(iii) the Incurrence by Holdings, the Borrower and the Subsidiary Guarantors of Indebtedness under the Credit Documents (other than Indebtedness incurred pursuant to Section 2.14 of this Agreement);
(iv) the Incurrence by Holdings, the Borrower or any Restricted Subsidiary of Indebtedness represented by Capital Lease Obligations, mortgage financings, Attributable Debt, purchase money obligations or other obligations, in each case, 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 or improvement of property, plant or equipment (including acquisition of Capital Stock of a Person that becomes a Restricted Subsidiary to the extent of the Fair Market Value of the property, plant or equipment of such Person) used in the business of Holdings, the Borrower or such Subsidiary Guarantor, in an aggregate amount, including all Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred pursuant to this clause (iv), not to exceed 5.0% of the total assets of Holdings (determined as of the end of the most recent Fiscal Quarter of Holdings for which internal financial statements of Holdings are available) at any time outstanding;
(v) the Incurrence by Holdings or any Restricted Subsidiary of Holdings of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease or discharge Indebtedness (other than intercompany Indebtedness) that was permitted by this Agreement to be Incurred under Section 9.03(a) or Section 9.03(b)(ii), (biii), (iv), (v), (xii) and or (cxv);
(vi) of this Section 4.08, the Company Incurrence by Holdings or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) intercompany Indebtedness of the Company owing to or held by Holdings or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereofSubsidiaries; provided, the aggregate amount of feeshowever, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed tothat:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if Holdings, the Company Borrower or any Subsidiary Guarantor is an obligorthe obligor on such Indebtedness, the such Indebtedness is must be unsecured and expressly subordinated in right of payment to the Notes, prior payment in the case full in cash of the Company, all Obligations; and
(B) (i) any subsequent issuance or the Note Guarantee, in the case transfer of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further Equity Interests that any event which results in any such Restricted Subsidiary ceasing to be Indebtedness being held by a Person other than Holdings, the Borrower or a Restricted Subsidiary of Holdings and (ii) any sale or any subsequent other transfer of any such Indebtedness (other than to a Person that is not Holdings, the Company Borrower or any other a Restricted Subsidiary) Subsidiary of Holdings, shall be deemed, in each case, to constitute an Incurrence of such Indebtedness by Holdings, the Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (2)(Bvi);
(3vii) the Notes Guarantee by Holdings, the Borrower or any of the Subsidiary Guarantors of Indebtedness of the Borrower or a Restricted Subsidiary of Holdings that was permitted to be issued on Incurred by another provision of this Section 9.03; provided that if the Issue DateIndebtedness being Guaranteed is subordinated to or pari passu with the Obligations, then the Guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(4viii) Indebtedness outstanding as the Incurrence by Holdings, the Borrower or any of the Issue Dateits Restricted Subsidiaries of Hedging Obligations that are permitted pursuant to Section 9.10;
(5ix) the Incurrence by Holdings or any of its Restricted Subsidiaries of Indebtedness issued in exchange forarising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or the net proceeds Guarantees or letters of which are used credit, surety bonds or performance bonds securing any obligations of Holdings or any of its Restricted Subsidiaries pursuant to extendsuch agreements, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such refinancing (any business, assets or Restricted Subsidiary for the purpose of financing such action, to “Refinance”acquisition), so long as the amount does not exceed the gross proceeds actually received by Holdings or any Restricted Subsidiary thereof in connection with such disposition;
(x) the Incurrence by Holdings 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 drawn against insufficient funds in the ordinary course of business, provided, however, that such Indebtedness is extinguished promptly after its Incurrence;
(xi) the Incurrence by Holdings or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business; provided that, upon the drawing of such letters of credit or the Incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or Incurrence;
(xii) the Incurrence by Holdings, the Borrower or any Restricted Subsidiary of Acquired Indebtedness in an aggregate principal amount 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 $200.0 million;
(xiii) the amount so Refinanced; provided that Indebtednessincurrence by Holdings, the Borrower or any of the Subsidiary Guarantors of Contribution Indebtedness;
(xiv) the Incurrence by Holdings or the Borrower of Indebtedness to the extent that the net proceeds thereof are promptly deposited to defease or to satisfy and discharge the Obligations; or
(xv) the Incurrence by Holdings or any of which are used its Restricted Subsidiaries of additional Indebtedness in an aggregate amount at any time outstanding, including all Permitted Refinancing Indebtedness Incurred to Refinance Subordinated Indebtednessrefund, will be permitted under refinance or replace any Indebtedness Incurred pursuant to this clause (5xv), not to exceed $100.0 million. For purposes of determining compliance with this Section 9.03, in the event that any proposed Indebtedness (including Acquired Indebtedness) only if:meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xv) of 9.03(b), or is entitled to be Incurred pursuant to 9.03(a), Holdings shall be permitted to divide and classify such item of Indebtedness at the time of its Incurrence in any manner that complies with this Section 9.03 and may later redivide and/or reclassify all or a portion of such item of Indebtedness in any manner that complies with this Section 9.03. Notwithstanding the foregoing, Indebtedness under the Secured Notes outstanding on the Effective Date shall be deemed to have been Incurred in reliance on the exception provided by Section 9.03(b)(i).
(Ac) such new IndebtednessNotwithstanding any other provision of this Section 9.03, by its terms or by the terms maximum amount of Indebtedness that may be Incurred pursuant to this Section 9.03 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, and in no event shall the reclassification of any agreement lease or instrument pursuant other liability as indebtedness due to which such new a change in accounting principles after the Effective Date be deemed to be an incurrence of Indebtedness.
(d) The Borrower shall not Incur any Indebtedness that is issued or remains outstanding, subordinate in right of payment to any other Indebtedness of the Borrower unless it is expressly made subordinate in right of payment to the Notes at least Obligations to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinancedsame extent. Holdings shall not, and the Average Life shall not permit any Subsidiary Guarantor, to Incur any Indebtedness that is subordinate in right of such new Indebtedness is at least equal payment to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may any other Indebtedness of Holdings or such Subsidiary Guarantor, as the Company or a Subsidiary Guarantor that ranks equally with or case may be, unless it is subordinate in right of payment to the Notes obligations of the relevant Subsidiary Guarantor under the Subsidiaries Guaranty to the same extent. For purposes of the foregoing, no Indebtedness shall be deemed to be subordinated in right of payment to any other Indebtedness of Holdings, the Borrower or such any Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced solely by means reason of any Indebtedness Liens or Guarantees arising or created in respect thereof or by virtue of the fact that the holders of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);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 2 contracts
Sources: Credit Agreement and Subsidiaries Guaranty (Leap Wireless International Inc), Credit Agreement (Leap Wireless International Inc)
Incurrence of Indebtedness. (a) The Except as otherwise provided in Section 14(b), for so long as any shares of Redeemable Convertible Preferred Stock are outstanding, the Company will not, and will not permit any of its Restricted Subsidiaries to, Incur without the consent of the Holders of at least 66- 2/3% of the outstanding voting power of the Redeemable Convertible Preferred Stock, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness if(including Acquired Debt).
(b) So long as the Company has declared and paid all dividends on the Redeemable Convertible Preferred Stock for all prior Dividend Periods, immediately after giving effect to Section 14(a) will not prohibit the Incurrence incurrence of such Indebtedness and the receipt and application any of the proceeds therefromfollowing items of Indebtedness (collectively, “PERMITTED INDEBTEDNESS”):
(i) the aggregate principal amount of all outstanding Indebtedness of incurrence by the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued existing on the Issue Date;
(4ii) the incurrence by the Company or any Restricted Subsidiary of Permitted Refinancing Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extendrefund, refinance, renew, refinance or replace, defease, discharge or refund other outstanding Indebtedness (other than clauses intercompany Indebtedness) that was permitted to be incurred under Section 14(a) or sub-section (1i), sub-section (2), viii) or this sub-section (6), (10), (11) and (13ii) of this Section 4.08(d14(b);
(iii) plus the aggregate amount incurrence by the Company or any of feesits Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, underwriting discountshowever, accrued that (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 unpaid (B) 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 sub-section;
(iv) the accrual of interest, premiums accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock; provided, however, in each such case that the amount thereof is included in Fixed Charges of the Company as accrued;
(v) any obligations in respect of completion bonds, performance bonds, bid bonds, appeal bonds, surety bonds, bankers acceptances, letters of credit, insurance obligations or bonds and other costs similar bonds and expenses Incurred obligations incurred by the Company or any Restricted Subsidiary in the ordinary course of business and any guaranties or letters of credit functioning as or supporting any of the foregoing bonds or obligations;
(vi) any obligation under Interest Rate Agreements, Currency Agreements and Commodity Agreements; provided, however, that such Interest Rate Agreements, Currency Agreements and Commodity Agreements are related to business transactions of the Company or its Restricted Subsidiaries entered into in the ordinary course of business and are entered into for bona fide hedging purposes (and not financing or speculative purposes) of the Company or its Restricted Subsidiaries (as determined in good faith by the Board of Directors, or senior management of the Company);
(vii) any obligation arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence; and
(viii) Indebtedness of a Restricted Subsidiary incurred after the Issue Date and outstanding on the date on which such Subsidiary was acquired by the Company (other than Indebtedness incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by the Company) and excluding therefrom any of such Indebtedness that is extinguished, retired or repaid in connection with such refinancing acquisition; provided, however, that on the date of such acquisition and after giving pro forma effect thereto, the Company would have been able to incur at least $1.00 of additional Indebtedness pursuant to Section 14(a).
(any such actionc) For purposes of determining compliance with this Section 14:
(i) in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in sub-sections (i) through (viii) of Section 14(b) above, or is entitled to “Refinance”be incurred pursuant to Section 14(a), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, Company will be permitted under this clause to classify and reclassify such item of Indebtedness (5or any portion thereof) in any manner that complies with Section 14, and only if:be required to include the amount and type of such Indebtedness in one of such clauses;
(Aii) 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;
(iii) Indebtedness permitted by this covenant need not be permitted solely by reference to one provision permitting such new Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this covenant permitting such Indebtedness, by its terms or by ;
(iv) the terms amount of any agreement or instrument pursuant to which such new Indebtedness issued at a price that is issued or remains outstanding, is expressly made subordinate in right of payment less than the principal amount thereof will be equal to the Notes at least to amount of the extent that the Indebtedness to be Refinanced is subordinated to the Notesliability in respect thereof determined in accordance with GAAP; and
(Bv) Indebtedness of any Person existing at the time such new Person becomes a Restricted Subsidiary shall be deemed to have been incurred by the Company and the Restricted Subsidiary at the time such Person becomes a Restricted Subsidiary.
(d) For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, determined as the U.S. dollar equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided, however, that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-dominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of Incurrence such refinancing, such U.S. dollar-dominated restriction shall be deemed not to have been exceeded so long as the principal amount of such new Indebtedness, refinancing Indebtedness does not mature prior to exceed the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life principal amount of such new Indebtedness is at least equal to being refinanced. Notwithstanding any other provision of this covenant, the remaining Average Life maximum amount of the Subordinated Indebtedness to that may be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor incurred pursuant to this clause (5);covenant shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Permitted Refinancing Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Permitted Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.
Appears in 2 contracts
Sources: Investment Agreement (Transmeridian Exploration Inc), Investment Agreement (Transmeridian Exploration Inc)
Incurrence of Indebtedness. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, Incur any Indebtedness if(including Acquired Debt) or Issue and Disqualified Stock, unless all of the below are satisfied:
(i) the Consolidated Fixed Charge Coverage Ratio for the Issuer’s most recently completed twelve fiscal months for which internal financial statements are available immediately after giving effect to preceding the Incurrence of date on which such additional Indebtedness and the receipt and is Incurred or Disqualified Stock is issued would have been at least 2.0:1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been Incurred or Disqualified Stock issued at the beginning of such twelve month period;
(ii) immediately following the incurrence of such Intendedness or issuance of such Disqualified Stock, the aggregate principal amount ratio of all outstanding Indebtedness (i) Consolidated Indebtedness, to (ii) Consolidated EBITDA, does not exceed 4.0:1.0; and
(iii) no Default or Event of the Company Default shall have occurred and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrencecontinuing.
(b) The Company will notNotwithstanding the foregoing, and Section 6.10(a) will not permit prohibit the Incurrence or issuance of any of its Restricted Subsidiaries tothe following (collectively, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to “Permitted Debt”):
(i) the Incurrence of such Subsidiary Indebtedness Attributable Debt or Secured Indebtedness and obligations represented by Capital Lease Obligations or Purchase Money Obligations, in each case, incurred for the receipt and application purpose of financing all or any part of the proceeds therefrompurchase price or cost of design, construction, installation, development or improvement of property, plant or equipment used in the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness business of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company Issuer or any of its Restricted Subsidiaries may Incur each and Subsidiaries, including all of the following:
(1) Permitted Refinancing Indebtedness of the Company Incurred to refund, refinance or replace any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed Indebtedness Incurred pursuant to have a principal amount equal to the face amount thereofthis Section 6.10(b)(i), in an aggregate principal amount at any one time outstanding not to exceed the sum greater of (1) (xA) $3,400.0 35 million plus or (yB) the aggregate principal an amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect equal to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, 2.0 multiplied by the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with Consolidated EBITDA for the Issuer’s most recently completed twelve fiscal months for which internal financial statements are available immediately preceding the date on which such refinancingAttributable Debt or Indebtedness permitted by this clause (i) is Incurred;
(2ii) the Incurrence of Non-Recourse Debt;
(iii) the Incurrence of Existing Indebtedness;
(iv) the Incurrence by the Issuer and the Guarantors of Indebtedness owed torepresented by the Notes and the Guarantees, in each case, issued on the Issue Date, and any Guarantee provided subsequent to the Issue Date;
(v) the Incurrence by the Issuer or any Restricted Subsidiary of the Issuer of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease or discharge Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be Incurred under Section 6.10(a) or Sections 6.10(b)(ii), 6.10(b)(iv) or 6.9(b)(xiv);
(vi) the Incurrence by the Issuer or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Issuer or any of its Restricted Subsidiaries; provided, however, that:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company Issuer or any Subsidiary Guarantor is an obligorthe obligor on such Indebtedness, such Indebtedness must be unsecured and expressly subordinated to the Indebtedness is subordinated prior payment in right full in cash of payment all Obligations with respect to the Notes, in the case of the CompanyIssuer, or the Note any Guarantee, in the case of a Subsidiary Guarantor Guarantor;
(except B) such Indebtedness owed to the extent prohibited by applicable Gaming Law); and provided further Issuer or any Guarantor must be unsubordinated obligations, unless the obligor under such Indebtedness is the Issuer or a Guarantor;
(1) any subsequent issuance or transfer of Equity Interests that any event which results in any such Restricted Subsidiary ceasing to be Indebtedness being held by a Person other than the Issuer or a Restricted Subsidiary thereof and (2) any sale or any subsequent other transfer of any such Indebtedness (other than to a Person that is not either the Company Issuer or any other a Restricted Subsidiary) shall Subsidiary thereof, will be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Issuer or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (2)(BSection 6.10(b)(vi);
(3vii) the Notes Guarantee by the Issuer or any of the Guarantors of Indebtedness of the Issuer or any Restricted Subsidiary of the Issuer that was permitted to be issued on the Issue DateIncurred by another provision of this covenant;
(4viii) Indebtedness outstanding as the Incurrence by the Issuer or any of its Restricted Subsidiaries of Hedging Obligations for the Issue Datepurpose of managing risks in the ordinary course of business and not for speculative purposes;
(5ix) the Incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance bonds, completion bonds, bid bonds, appeal bonds and surety bonds or other similar bonds or obligations, and any guarantees or letters of credit functioning as or supporting any of the foregoing, in each case provided by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business;
(x) the Incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit issued in exchange forthe ordinary course of business; provided that, upon the drawing of such letters of credit or the net proceeds Incurrence of which such Indebtedness, such obligations are used reimbursed within one year following such drawing or Incurrence;
(xi) the Incurrence by the Issuer or any of its Restricted Subsidiaries of Permitted Acquisition Indebtedness;
(xii) any guarantee, indemnity, reimbursement or similar obligation or liability of the Issuer or any Restricted Subsidiary relating to extendthe obligations of any Subsidiary under (1) any lease agreement for a Permitted Business or (2) construction financing and/or tenant improvement allowances for a Permitted Business, in each case in the ordinary and consistent with past practices;
(xiii) the Incurrence by the Issuer or any Restricted Subsidiary of Acquired Debt and/or Vendor Take-Back Notes in an aggregate amount up to $65 million; or
(xiv) the Incurrence by the Issuer or any of its Restricted Subsidiaries of additional Indebtedness not otherwise permitted under Section 6.10(b)(i) through (xii) in an aggregate amount at any time outstanding, including all Permitted Refinancing Indebtedness Incurred to refund, refinance, renew, replace, defease, discharge or refund other outstanding replace any Indebtedness (other than clauses (1Incurred pursuant to this Section 6.10(b)(xii), not to exceed the greater of (2), A) $20.0 million or (6), (10), (11B) and (13) of this Section 4.08(d)) plus the amount equal to 0.3 multiplied by the aggregate amount of feesConsolidated EBITDA for the most recently completed twelve fiscal months of the Issuer for which the internal financial statements are available immediately preceding the date on which such Indebtedness is Incurred.
(c) For purposes of determining compliance with this covenant, underwriting discountsin the event that any proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in Section 6.10(b)(i) through (xii) above, accrued and unpaid interest, premiums and other costs and expenses or is entitled to be Incurred in connection with such refinancing (any such action, or issued pursuant to “Refinance”Section 6.10(a), the Issuer will be permitted to divide and classify such item of Indebtedness at the time of its Incurrence in an amount not any manner that complies with this Section 6.10. In addition, any Indebtedness originally divided or classified as Incurred pursuant to exceed Section 6.10(b)(i) through (xii) above or pursuant to Section 6.10(a) may later be re-divided or reclassified by the amount so RefinancedIssuer such that it will be deemed as having been Incurred pursuant to another of such clauses or such paragraph; provided that Indebtednesssuch re-divided or reclassified Indebtedness could be Incurred pursuant to such new clause or such paragraph at the time of such re-division or reclassification. Notwithstanding the foregoing, Indebtedness outstanding on the Issue Date will be deemed to have been Incurred on such date in reliance on the exception provided pursuant to Section 6.10(b)(iii). 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 such determination.
(d) Notwithstanding any other provision of this covenant and for the avoidance of doubt, the proceeds maximum amount of Indebtedness that may be Incurred pursuant to this covenant will 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 or increases in the value of property securing Indebtedness which are used occur subsequent to Refinance Subordinated Indebtedness, will be the date that such Indebtedness was Incurred as permitted under by this clause (5) only if:covenant.
(Ae) The Issuer will not, and will not permit any Guarantor to, Incur any Indebtedness that is subordinate in right of payment to any other Indebtedness of the Issuer or such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which Guarantor unless such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least and such Guarantor’s Guarantee to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);same extent.
Appears in 2 contracts
Sources: Trust Indenture, Trust Indenture
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to (collectively, "incur") any Indebtedness if(including Acquired Debt); provided, immediately after giving effect to however, that, notwithstanding the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of foregoing the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
Guarantor may incur Indebtedness (b) The Company will notincluding Acquired Debt), and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence incurrence of such Indebtedness and the receipt and application of the net proceeds therefromthereof on a pro forma basis, the Interest Coverage Indebtedness to Cash Flow Ratio of the Company would not have exceeded 8.0 to 1. The foregoing limitation will not apply to any of the following incurrences of Indebtedness:
(i) Indebtedness represented by the Notes, the Guarantees and this Indenture;
(ii) the incurrence by the Company or any Guarantor of Acquired Subscriber Debt not to exceed $1,750 per Acquired Subscriber;
(iii) the incurrence by the Company, any of its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).or any Guarantor of Deferred Payments and letters of credit with respect thereto;
(div) Notwithstanding clauses Indebtedness of the Company, any of its Restricted Subsidiaries or any Guarantor in an aggregate principal amount not to exceed $1,050,000,000 at any one time outstanding, which Indebtedness may be secured to the extent permitted under Section 4.12 of this Indenture;
(av) Indebtedness between and among the Company and any of its Restricted Subsidiaries or any Guarantor;
(vi) Acquired Debt of a Person incurred prior to the date upon which such Person was acquired by the Company, any of its Restricted Subsidiaries or any Guarantor (excluding Indebtedness incurred by such entity other than in the ordinary course of its business in connection with, or in contemplation of, such entity being so acquired) in an amount not to exceed (A) $50 million in the aggregate for all such Persons other than those described in the immediately following clause (B), (b) ; and (cB) of this Section 4.08, Acquired Debt owed to the Company or any of its Restricted Subsidiaries may Incur each or any Guarantor;
(vii) Existing Indebtedness;
(viii) the incurrence of Purchase Money Indebtedness by the Company, any of its Restricted Subsidiaries or any Guarantor in an amount not to exceed the cost of construction, acquisition or improvement of assets used in any business permitted under Section 4.17 of this Indenture, as well as any launch costs and all insurance premiums related to such assets;
(ix) Hedging Obligations of the following:Company or any of its Restricted Subsidiaries covering Indebtedness of the Company or such Restricted Subsidiary to the extent the notional principal amount of such Hedging Obligation does not exceed the principal amount of the Indebtedness to which such Hedging Obligation relates; provided, however, that such Hedging Obligations are entered into to protect the Company and its Restricted Subsidiaries from fluctuation in interest rates on Indebtedness incurred in accordance with this Indenture;
(1x) Indebtedness of the Company or any Restricted Subsidiary in respect of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance performance bonds or creation of letters of credit of the Company or any Restricted Subsidiary or surety bonds provided by the Company or any Restricted Subsidiary incurred in the ordinary course of business and bankers’ acceptances thereunder or on ordinary business terms in connection therewith with the businesses permitted under Section 4.17 of this Indenture;
(with letters xi) Indebtedness of credit the Company, any of its Restricted Subsidiaries or any Guarantor the proceeds of which are used solely to finance the construction and bankers acceptances being deemed to have development of a principal amount equal to call center owned by the face amount Company or any of its Restricted Subsidiaries in Christainsburg, Virginia or any refinancing thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) ; provided that the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of all Indebtedness incurred pursuant to this clause (y), the Company and its Restricted Subsidiaries are xi) shall in compliance with paragraphs (a) and (b) above) plus (2) in the case of no event exceed $25 million at any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancingone time outstanding;
(2xii) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced the incurrence by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary of its Restricted Subsidiaries or Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge substitute or refund other outstanding in whole or in part Indebtedness (other than referred to in the first paragraph of this Section 4.09 or in clauses (1i), (2ii), (6iii), (10vi), (11vii) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”viii), in an amount not to exceed the amount so Refinancedabove ("Refinancing Indebtedness"); provided that Indebtednessprovided, the proceeds of which are used to Refinance Subordinated Indebtednesshowever, will be permitted under this clause (5) only if:
that: (A) the principal amount of such new IndebtednessRefinancing Indebtedness shall not exceed the principal amount and accrued interest of the Indebtedness so exchanged, by its terms extended, refinanced, renewed, replaced, substituted or by refunded and any premiums payable and reasonable fees, expenses, commissions and costs in connection therewith; (B) the terms Refinancing Indebtedness shall have a final maturity equal to or later than, and a Weighted Average Life to Maturity equal to or greater than, the final maturity and Weighted Average Life to Maturity, respectively, of any agreement the Indebtedness being exchanged, extended, refinanced, renewed, replaced or instrument pursuant to which such new refunded; and (C) the Refinancing Indebtedness is issued or remains outstanding, is expressly made subordinate shall be subordinated in right of payment to the Notes and the Guarantees, if at all, on terms at least as favorable to the extent that holders of Notes as those contained in the documentation governing the Indebtedness to be Refinanced is subordinated to the Notes; andbeing extended, refinanced, renewed, replaced or refunded (a "Permitted Refinancing");
(Bxiii) such new Indebtednessthe guarantee by the Company, determined as any of the date its Restricted Subsidiaries or any Guarantor of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that was permitted to be incurred by another provision of this Section 4.09;
(xiv) Indebtedness under Capital Lease Obligations of the Company, any of its Restricted Subsidiaries or any Guarantor with respect to no more than three direct broadcast satellites at any time. For purposes of determining compliance with this Section 4.09, if an item of Indebtedness meets the criteria of more than one of the categories described in clauses (i) through (xiv) above or is not a Subsidiary Guarantor permitted to be incurred pursuant to the first paragraph of this clause Section 4.09 and also meets the criteria of one or more of the categories described in clauses (5);i) through (xv) above, the Company shall, in its sole discretion, classify such item of Indebtedness in any manner that complies with this Section 4.09 and may from time to time reclassify such item of Indebtedness in any manner in which such item could be incurred at the time of such reclassification. Accrual of interest and the accretion of accreted value will not be deemed to be an incurrence of Indebtedness for purposes of this Section 4.09.
Appears in 2 contracts
Sources: Indenture (Echostar Communications Corp), Indenture (Echostar DBS Corp)
Incurrence of Indebtedness. (a) The Company will notNone of the Guarantors shall, and will the Company shall cause the Guarantors not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to (collectively, “incur”) any Indebtedness; provided, however, that notwithstanding the foregoing, any Guarantor may incur, so long as no Default or Event of Default has occurred and is continuing:
(1) Indebtedness ifrepresented by (i) the Notes issued on the Issue Date, any PIK Notes issued under this Indenture, the Notes Guarantees thereof, this Indenture and the Security Documents, (ii) the New Senior Spectrum Secured Notes and the New Exchange Notes, in each case, issued on the Issue Date, and (iii) the New Exchange Notes issued as PIK Notes (as defined in the New Exchange Notes Indenture) and, in each case, related guarantees;
(2) First Lien Indebtedness (other than the Notes, the New Exchange Notes and the New Senior Spectrum Secured Notes issued on the Issue Date); provided that (a)(w) immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromFirst Lien Indebtedness, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would First Lien LTV Ratio shall not be greater than 65% 0.375 to 1.00, (x) the aggregate amount of Adjusted Total Assets First Lien Indebtedness that may be incurred pursuant to this clause (2) after the Issue Date shall not exceed the Spectrum Value Debt Cap, (y) First Lien Indebtedness incurred under this clause (2) cannot be incurred prior to the completion of the Initial Appraisal pursuant to Section 4.21 hereof and (z) First Lien Indebtedness incurred under this clause (2) cannot be guaranteed by any Subsidiary that is not a Guarantor or secured by any assets other than the Collateral; and (b) unless such First Lien Indebtedness is in the form of Notes, the New Exchange Notes or the New Senior Spectrum Secured Notes issued under this Indenture, the New Exchange Notes Indenture and the New Senior Spectrum Secured Notes Indenture, respectively, the Authorized Representative for such First Lien Indebtedness shall have entered into the First Lien Intercreditor Agreement as a First Lien Representative;
(3) Indebtedness; provided that (a) immediately after giving effect to such Indebtedness, the LTV Ratio shall not be greater than 0.60 to 1.00; (b) Indebtedness incurred under this clause (3) cannot be incurred prior to the completion of the Initial Appraisal pursuant to Section 4.21 hereof; (c) Indebtedness incurred under this clause (3) cannot be guaranteed by any Subsidiary that is not a Guarantor or secured by any assets other than the Collateral; (d) Indebtedness incurred under this clause (3) cannot have a maturity date earlier than one year following the occurrence of the maturity date of the Notes; (e) the terms of any date Indebtedness incurred under this clause (3) cannot provide for (x) any scheduled repayment, mandatory repayment or redemption so long as any Notes remain outstanding and (y) no cash interest shall be paid on such Indebtedness for any period if the Company has elected to pay PIK Interest for the most recently ended interest payment period; (f) the covenants and events of Incurrencedefault applicable to any Indebtedness incurred under this clause (3) shall be no more restrictive than those applicable to the Notes; and (g) if such Indebtedness is secured by a Lien on any Collateral, the Authorized Representative for such Second Lien Indebtedness shall have entered into the Second Lien Intercreditor Agreement as a Second Lien Representative;
(4) Indebtedness between and among the Guarantors; provided that any such intercompany debt shall be pledged on a first lien basis in favor of the Collateral Agent for its benefit and the benefit of the Trustee and the Holders pursuant to the Security Documents (it being understood that the Security Documents shall be amended as necessary to provide for the pledge of debt as collateral and in any event, shall be in a form satisfactory to the Required Holders and the Collateral Agent); and
(5) the guarantee by any Guarantor of Indebtedness of a Guarantor that was permitted to be incurred by another provision of this Section 4.12.
(b) The Company will notFor purposes of determining compliance with this Section 4.12, in the event that an item of Indebtedness meets the criteria of more than one clause in the paragraph above, such Indebtedness may be divided, classified or reclassified at the time of incurrence thereof or at any later time (in whole or in part) in any manner that complies with this Section 4.12 and will not permit any such item of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness may be incurred partially under one clause and partially under one or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrencemore other clauses.
(c) The Company will not, and will not permit any principal amount of its Restricted Subsidiaries to, Incur any Indebtedness if, outstanding under any clause of this Section 4.12 will be determined after giving effect to the Incurrence application of proceeds of any such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis)refinance any such other Indebtedness.
(d) Notwithstanding clauses (a)The accrual of interest, (b) and (c) 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 will not be deemed to be an incurrence of Indebtedness for purposes of this Section 4.084.12. Notwithstanding any other provision of this Section 4.12, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal maximum amount of any outstanding Incremental Term Loans (provided Indebtedness that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor incur pursuant to this clause (5);Section 4.12 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.
Appears in 2 contracts
Sources: Indenture (DISH Network CORP), Indenture (SNR Wireless LicenseCo, LLC)
Incurrence of Indebtedness. (a1) The Company will notFor the purposes of this Fourth Supplemental Indenture only and with respect to the 2026 Notes only (and for greater certainty not with respect to the 2023 Notes, the 2023 Convertible Notes or the 2025 Convertible Notes), the Original Indenture shall be amended by deleting Section 7.10(b)(ii) in its entirety and will not permit replacing it with the following: “the Incurrence by the Issuer or any Restricted Subsidiary of its Restricted Subsidiaries toIndebtedness represented by Lease Obligations in an aggregate principal amount that, Incur any Indebtedness if, immediately at the time of and after giving effect to such Incurrence and all other Incurrences made under this Section 7.10(b)(ii) since the Incurrence Initial Issue Date and which remain outstanding (including all Permitted Refinancing Indebtedness Incurred to refund, refinance, replace, defease or discharge any Lease Obligations Incurred pursuant to this Section 7.10(b)(ii)), does not exceed the greater of such Indebtedness (a) $200 million and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not20% of the Issuer’s Consolidated Net Tangible Assets (determined as of the date of such Incurrence and including any right of use assets acquired in connection with such Lease Obligations);”
(2) For the purposes of this Fourth Supplemental Indenture only and with respect to the 2026 Notes only (and for greater certainty not with respect to the 2023 Notes, the 2023 Convertible Notes or the 2025 Convertible Notes), the Original Indenture shall be amended by deleting Section 7.10(b)(iv) in its entirety and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness replacing it with the following: “the Incurrence by the Issuer or any Secured Restricted Subsidiary of Indebtedness if, immediately after giving effect to represented by purchase money obligations incurred for the Incurrence purpose of such Subsidiary Indebtedness financing all or Secured Indebtedness and the receipt and application any part of the proceeds therefrompurchase price or cost of design, construction, installation, development or improvement of property, plant or equipment used in the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness business of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company Issuer or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof)Subsidiaries, in an aggregate principal amount that, at any one the time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that and after giving pro forma effect to such Incurrence and all other Incurrences made under this Section 7.10(b)(iv) since the Initial Issue Date and which remain outstanding (including all Permitted Refinancing Indebtedness Incurred to refund, refinance, replace, defease or discharge any such incurrences of Indebtedness Incurred pursuant to this clause (ySection 7.10(b)(iv)), does not exceed the Company and its Restricted Subsidiaries are in compliance with paragraphs greater of (a) $100 million and (b) above10% of the Issuer’s Consolidated Net Tangible Assets (determined as of the date of such Incurrence and including any assets acquired with such Indebtedness);”
(3) plus For the purposes of this Fourth Supplemental Indenture only and with respect to the 2026 Notes only (2and for greater certainty not with respect to the 2023 Notes, the 2023 Convertible Notes or the 2025 Convertible Notes), the Original Indenture shall be amended by deleting Section 7.10(b)(vii) in its entirety and replacing it with the case following: “the Incurrence by the Issuer and the Guarantors of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, represented by the aggregate amount of fees, underwriting discounts, accrued Notes and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a the Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemedGuarantees, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Initial Issue Date, and any subsequent Incurrence by a Guarantor of Indebtedness represented by a Subsidiary Guarantee;”
(4) Indebtedness outstanding as For the purposes of this Fourth Supplemental Indenture only and with respect to the 2026 Notes only (and for greater certainty not with respect to the 2023 Notes, the 2023 Convertible Notes or the 2025 Convertible Notes), the Original Indenture shall be amended by deleting Section 7.10(b)(viii) in its entirety and replacing it with the following: “the Incurrence by the Issuer or any Restricted Subsidiary of the Issue Date;
(5) Issuer of Permitted Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to extendrefund, refinance, renew, replace, defease, defease or discharge or refund other outstanding Indebtedness (other than intercompany Indebtedness) that was permitted by the Note Indenture to be Incurred under Section 7.10(a) or clauses (1ii), (2iv), (6vi), (10), xv) or (11) and (13xix) of this Section 4.08(d7.10(b)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance;”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause
(5) For the purposes of this Fourth Supplemental Indenture only if:
and with respect to the 2026 Notes only (Aand for greater certainty not with respect to the 2023 Notes, the 2023 Convertible Notes or the 2025 Convertible Notes), the Original Indenture shall be amended by deleting Section 7.10(b)(xix) such new Indebtedness, by in its terms or entirety and replacing it with the following: “the Incurrence by the terms Issuer or any Restricted Subsidiary of additional Indebtedness in an aggregate principal amount that, at the time of and after giving effect to such Incurrence and all other Incurrences made under this Section 7.10(b)(xix) since the Initial Issue Date and which remain outstanding (including all Permitted Refinancing Indebtedness Incurred to refund, refinance, replace, defease or discharge any agreement or instrument Indebtedness Incurred pursuant to which such new Indebtedness is issued or remains outstandingthis Section 7.10(b)(xix)), is expressly made subordinate in right does not exceed the greater of payment to (a) $95 million and (b) 9.5% of the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
Issuer’s Consolidated Net Tangible Assets (B) such new Indebtedness, determined as of the date of such Incurrence and including any assets acquired with such Indebtedness).”
(6) For the purposes of such new Indebtedness, does not mature prior this Fourth Supplemental Indenture only and with respect to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, 2026 Notes only (and the Average Life of such new Indebtedness is at least equal for greater certainty not with respect to the remaining Average Life of 2023 Notes, the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the 2023 Convertible Notes or such Subsidiary Guarantor’s Note Guaranteethe 2025 Convertible Notes), as applicable, the Original Indenture shall be Refinanced amended by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);deleting Section the paragraph titled “Minimum Liquidity” in 7.10(b) in its entirety.
Appears in 2 contracts
Sources: Fourth Supplemental Indenture (Columbia Care Inc.), Fourth Supplemental Indenture
Incurrence of Indebtedness. (a) The Company Tronox covenants and agrees that after the consummation of the Initial Public Offering and through the Separation Date, Tronox will not, and Tronox will not permit any other member of its Restricted Subsidiaries the Tronox Group to, Incur without Parent’s prior written consent (which Parent may withhold in its sole and absolute discretion), directly or indirectly, incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of IncurrenceIndebtedness.
(b) The Company Tronox hereby covenants and agrees that, for so long as Tronox constitutes a “subsidiary,” as such term is defined, any Contract pursuant to which any member of the Parent Group is a party with respect to Indebtedness incurred by Parent or any member of the Parent Group, Tronox will not, and Tronox will not permit any other member of its Restricted Subsidiaries the Tronox Group to, Incur without Parent’s prior written consent (which Parent may withhold in its sole and absolute discretion), create, incur, assume or suffer to exist any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to if the Incurrence incurrence of such Subsidiary Indebtedness would cause Parent to be in breach of or Secured in default under such Contract the existence of which Parent has advised Tronox and of which Parent has furnished Tronox a copy, or if the incurrence of such Tronox Indebtedness and would be reasonably likely to adversely impact the receipt and application credit rating of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured any Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of IncurrenceParent.
(c) The Company In order to implement this Section 8.4, Tronox will not, notify Parent in writing at least 45 days prior to the time it or any other member of the Tronox Group contemplates incurring any Indebtedness and will either (i) demonstrate to Parent’s satisfaction that this Section 8.4 will not permit be violated by such proposed Indebtedness or (ii) obtain Parent’s prior written consent to the incurrence of such proposed Indebtedness. Any such written notification from Tronox to Parent will include documentation of any existing Indebtedness of its Restricted Subsidiaries to, Incur any the Tronox Group and estimated Indebtedness if, of the Tronox Group after giving effect to the Incurrence such proposed incurrence of such Indebtedness Indebtedness. Parent will have the right to verify the accuracy of such information and Tronox will cooperate fully with Parent in such effort (including, without limitation, by providing Parent with access to the receipt working papers and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 underlying documentation related to 1.0 (calculated on a Pro Forma Basisany calculations used in determining such information).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);
Appears in 2 contracts
Sources: Master Separation Agreement (Tronox Inc), Master Separation Agreement (Kerr McGee Corp /De)
Incurrence of Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, Incur, directly or indirectly, any Indebtedness; provided, however, that the Company and any Restricted Subsidiary may Incur any Indebtedness if, immediately if on the date of such Incurrence and after giving effect to thereto the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis Leverage Ratio would be greater than 65% of Adjusted Total Assets as of any date of Incurrencenot exceed 5.5:1.0.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to Notwithstanding the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses foregoing paragraph (a), (b) and (c) of this Section 4.08, the Company or and any of its Restricted Subsidiaries Subsidiary may Incur each and all of the followingfollowing Indebtedness:
(1) Bank Indebtedness of (including, without limitation, Bank Indebtedness Incurred under the Company Existing Credit Facility) or any of other Pari Passu Lien Obligation (including the Subsidiary Guarantors outstanding under Credit Facilities Existing Senior Secured Notes and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to Notes issued on the face amount thereof), Closing Date) in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancingexceeding £5,300,000,000;
(2) Indebtedness of the Company owed to:
(A) The Company to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary Guarantor evidenced owed to and held by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligorRestricted Subsidiary; provided, the Indebtedness is subordinated in right however, that (A) any subsequent issuance or transfer of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary Capital Stock or any subsequent transfer of such Indebtedness (or any other event that results in any such Indebtedness being held by a Person other than to the Company or any other a Restricted Subsidiary) Subsidiary shall be deemed, in each case, deemed to constitute an the Incurrence of such Indebtedness not permitted by this clause the obligor thereon or (2)(B)B) if the Issuer or the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated for the benefit of the Holders to the prior payment in full in cash of all obligations with respect to the Notes or the Note Guarantee by the Company, as the case may be;
(3) Indebtedness (A) represented by the Notes to be issued and the Exchange Notes (not including any Additional Notes); and (B) outstanding on the Issue DateClosing Date (other than the Indebtedness described in clauses (1) and (2) of this paragraph (b));
(4) Indebtedness outstanding as consisting of the Issue Date;
(5) Refinancing Indebtedness issued Incurred in exchange for, or the net proceeds respect of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding any Indebtedness (other than described in clauses (1), 3) or (2), (6), (10), (11) and (134) of this Section 4.08(d)paragraph (b) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing or under paragraph (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5a);
Appears in 1 contract
Sources: Indenture (Virgin Media Inc.)
Incurrence of Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount ratio of all outstanding consolidated Indebtedness of the Company and its the Restricted Subsidiaries on a consolidated basis would be greater than 65% of to Adjusted Total Assets as of any date of Incurrencewould exceed 0.65 to 1.00.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount ratio of all outstanding Subsidiary Indebtedness and consolidated Secured Indebtedness of the Company and its the Restricted Subsidiaries on a consolidated basis would be greater than 45% of to Adjusted Total Assets as of any date of Incurrencewould exceed 0.45 to 1.00.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 1.50 to 1.0 1.0; provided that for so long as any Subsidiary of the Company Guarantees the Notes, the amount of additional Indebtedness that may be Incurred from and after the Issue Date by Restricted Subsidiaries that are not Subsidiary Guarantors under this clause (calculated on a Pro Forma Basis)c) shall not exceed the greater of $900.0 million and an amount equal to 7.5% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding.
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
: (1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) the greater of $3,400.0 4,000.0 million plus (y) the aggregate principal and an amount equal to 35.0% of Adjusted Total Assets at any time outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing Refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);Refinancing;
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, Incur incur any Indebtedness if, immediately after giving effect to the Incurrence incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, thereof,
(a) the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries (determined on a consolidated basis would be in accordance with GAAP) is greater than 6560% of Consolidated Adjusted Total Assets as of any date of Incurrence.Assets; or
(b) The Company will notpro forma Consolidated Income Available for Debt Service is less than 150% of pro forma Annual Service Charge, and will not permit any in each case for the four consecutive fiscal quarters then most recently ended. For purposes of this Agreement, a Person that becomes a Subsidiary after the date of the Closing shall be deemed at that time to have incurred all of its Restricted Subsidiaries tooutstanding Indebtedness and a Person that after the date of the Closing is consolidated with or merged with or into the Company or a Subsidiary or sells, Incur any Subsidiary Indebtedness leases or any Secured Indebtedness if, immediately after giving effect otherwise disposes of all or substantially all of its property to the Incurrence of such Company or a Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of shall be deemed at that time to have incurred all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence outstanding Indebtedness. For purposes of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), clause (b) and above, all calculations shall be made on a pro forma basis on the assumption (cwithout limitation as to other adjustments in accordance with GAAP) of this Section 4.08, that (i) all Indebtedness incurred by the Company or any of its Restricted Subsidiaries may Incur each Subsidiary during the four-quarter period was incurred, and all net proceeds thereof were applied, on the first day of such period, (ii) all Indebtedness repaid or retired during such four-quarter period was repaid or retired on the following:
first day of such period (1) except that the amount of Indebtedness under any revolving credit facility shall be computed based upon the average daily balance of the Company or any of the Subsidiary Guarantors outstanding Indebtedness under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereofsuch facility during such period), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2iii) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred incurred in connection with an acquisition during such refinancing;
four-quarter period, the related acquisition occurred on the first day of such period (2with appropriate adjustments with respect to such acquisition being included in such calculation), and (iv) Indebtedness owed to:
(A) The Company in the case of an acquisition or a Subsidiary Guarantor evidenced disposition by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligorof any asset or group of assets during such four-quarter period (whether by merger, stock purchase or sale, or asset purchase or sale), such acquisition or disposition and any related repayment of Indebtedness occurred on the Indebtedness is subordinated in right of payment to the Notes, in the case first day of the Company, period (with appropriate adjustments with respect to such acquisition or the Note Guarantee, disposition being included in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Lawsuch calculation); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);.
Appears in 1 contract
Sources: Note Purchase Agreement (Meridian Industrial Trust Inc)
Incurrence of Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries the Guarantors to, Incur any directly or indirectly, incur Indebtedness ifthat will constitute First Lien Debt, immediately after giving effect to unless the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
CNTA Ratio (b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences incurrence and the application of Indebtedness pursuant the net proceeds thereof) is equal to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and or greater than 1.66 to 1.00.
(b) above) plus (2) in the case For purposes of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereofSection 4.07, the aggregate amount of feesFirst Lien Debt outstanding as of any date of determination will be calculated as the sum of, underwriting discountswithout duplication:
(1) the aggregate outstanding principal amount of all Indebtedness (or, accrued if such Indebtedness is issued with original issue discount, the then accreted value thereof) for borrowed money that constitutes First Lien Debt, plus
(2) the aggregate face amount of any letters of credit or similar instruments issued but not yet drawn that, when drawn, would constitute First Lien Debt, and unpaid interestthe aggregate amount of reimbursement obligations in respect of drawn letters of credit or similar instruments that constitute First Lien Debt, premiums plus
(3) the aggregate amount of undrawn and unutilized commitments under which any First Lien Debt could be drawn and/or utilized as of such date, plus
(4) the aggregate outstanding principal amount of any First Lien Debt (or, if such Indebtedness is issued with original issue discount, the then accreted value thereof) outstanding consisting of notes, bonds, debentures, credit agreements (including any Eligible Commodity Hedge Financing) or similar instruments or agreements.
(c) Section 4.07(a) hereof will not apply to:
(1) any Specified Cash Management and Swap Obligations, other costs Cash Management Obligations that would constitute First Lien Debt and expenses Incurred in connection with such refinancingany First Lien Hedging Obligations;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
Indebtedness under the Credit Agreement and Term Loan Agreements outstanding on the date of this Indenture, plus (B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the 2022 Notes, plus (C) the 2024 Notes, plus (D) the 2026 Notes, plus (E) up to $2.0 billion in the case additional Indebtedness incurred to repay or redeem secured debt, secured lease obligations or preferred securities of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Project Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued hereby on the Issue Datedate of this Indenture;
(4) any accretion of original issue discount or the payment of interest on any Indebtedness in the form of Indebtedness with the same terms (it being understood that each will be taken into account in determining the aggregate amount of First Lien Debt outstanding as of the Issue Datespecified in Section 4.07(b)(1) hereof);
(5) any incurrence of Indebtedness issued in exchange forthat constitutes First Lien Debt (A) resulting from the drawing of, or reimbursement obligations under, any letters of credit or similar instruments or (B) resulting from borrowings under any undrawn and unutilized commitments to lend such Indebtedness, in each case, that were (i) in existence as of the net proceeds 2017 Notes Issue Date (including without limitation under the Credit Agreement, as in effect on the 2017 Notes Issue Date) or (ii) included in any calculation of which are used the amount of First Lien Debt outstanding pursuant to extendSection 4.07(b) hereof in connection with an incurrence of First Lien Debt pursuant to Section 4.07(a) hereof; and, in either case, any Permitted Replacement Commitments that replaced such letters of credit, similar obligations and commitments;
(6) any Permitted Refinancing Indebtedness incurred to renew, refund, refinance, renew, replace, defeasedefease or discharge any Indebtedness that was permitted to be incurred pursuant to this Section 4.07; and
(7) any Eligible Commodity Hedge Financings, discharge so long as the lenders thereunder (or refund other outstanding their representatives on their behalf) become a party to, or consent or agree to be bound by the terms and conditions, of the Collateral Agency and Intercreditor Agreement.
(d) Notwithstanding the foregoing, the Company or any of the Guarantors may not incur (1) additional Indebtedness (other than Specified Cash Management and Swap Obligations, other Cash Management Obligations that would constitute First Lien Debt, any First Lien Hedging Obligations and any extension, renewal or refinancing of the Eligible Commodity Hedge Financings existing on the 2017 Notes Issue Date) pursuant to Section 4.07(a) hereof, (2) any Permitted Refinancing Indebtedness with respect to Indebtedness incurred under clauses (1), (2), (63), (10), 4) or (11) and (135) of this Section 4.08(d)4.07(c) plus hereof or (3) any Permitted Refinancing Indebtedness with respect to any of the aggregate amount foregoing, in each case that will constitute First Lien Debt unless, within 60 days of feesthe incurrence of such Indebtedness:
(1) The Company and the Guarantors shall enter into, underwriting discountsand deliver to the Collateral Agent, accrued in the sole discretion of the Collateral Agent, a mortgage modification or new mortgage with regard to each Mortgaged Property, in proper form for recording in all applicable jurisdictions, in a form reasonably satisfactory to the Collateral Agent;
(2) The Company or the applicable Guarantor will cause to be delivered a local counsel opinion with respect to each Mortgaged Property in form and unpaid interestsubstance, premiums and issued by law firms, in each case, reasonably satisfactory to the Collateral Agent;
(3) The Company or the applicable Guarantor will cause a title company approved by the Collateral Agent to have delivered to the Collateral Agent an endorsement to each title insurance policy then in effect for the benefit of the Secured Parties, date down(s) or other costs and expenses Incurred in connection with evidence reasonably satisfactory to the Collateral Agent (which may include a title search or a new title insurance policy) (each such refinancing (any such actiondelivery, to a “RefinanceTitle Datedown Product”), in an amount each case ensuring that (i) the priority of the Lien of the applicable mortgage(s) as security for the Notes has not changed, (ii) since the date of the Title Datedown Product delivered most recently prior to exceed the amount so Refinanced; provided that (and not in connection with) such additional Indebtedness, there has been no change in the proceeds condition of title and (iii) there are no intervening liens or encumbrances which are used may then or thereafter take priority over the Lien of the applicable mortgage(s), in each case other than with respect to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the NotesPermitted Liens; and
(B4) such new IndebtednessThe Company or the applicable Guarantor will, determined as upon the request of the date of Incurrence of such new IndebtednessCollateral Agent, does not mature prior deliver to the Stated Maturity approved title company, the Collateral Agent and/or all other relevant third parties all other items reasonably necessary to maintain the continuing priority of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life Lien of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of mortgages as security for the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);Notes.
Appears in 1 contract
Sources: Indenture (Calpine Corp)
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to (collectively, "incur") any Indebtedness if(including Acquired Debt); PROVIDED, immediately after giving effect to HOWEVER, that, notwithstanding the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of foregoing the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
Guarantor may incur Indebtedness (b) The Company will notincluding Acquired Debt), and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence incurrence of such Indebtedness and the receipt and application of the net proceeds therefromthereof on a pro forma basis, the Interest Coverage Indebtedness to Cash Flow Ratio of the Company would not have exceeded 8.0 to 1. The foregoing limitation will not apply to any of the following incurrences of Indebtedness:
(i) Indebtedness represented by the Notes, the Guarantees and its the Indenture;
(ii) the incurrence by the Company or any Guarantor of Acquired Subscriber Debt not to exceed $1,250 per Acquired Subscriber;
(iii) the incurrence by the Company or any Guarantor of Deferred Payments and letters of credit with respect thereto;
(iv) Indebtedness of the Company or any Guarantor that ranks PARI PASSU with or is subordinated to the Notes and the Guarantees in an aggregate principal amount not to exceed $700 million at any one time outstanding, which Indebtedness may be secured to the extent permitted under Section 4.12 of this Indenture; PROVIDED that up to $75 million at any one time outstanding of such Indebtedness may be incurred by Restricted Subsidiaries on that are not Guarantors; PROVIDED further that any Indebtedness incurred pursuant to this clause (iv) that is incurred pursuant to a consolidated basis would Credit Agreement shall be less than 2.0 incurred pursuant to 1.0 a Credit Agreement under which the Company is the sole primary obligor (calculated on a Pro Forma Basisand under which the Guarantors (and no other Restricted Subsidiary) may guarantee the primary obligations of the Company).;
(dv) Notwithstanding clauses Indebtedness between and among the Company and each of the Guarantors;
(avi) Acquired Debt of a Person incurred prior to the date upon which such Person was acquired by the Company or any Guarantor (excluding Indebtedness incurred by such entity other than in the ordinary course of its business in connection with, or in contemplation of, such entity being so acquired) in an amount not to exceed (A) $30 million in the aggregate for all such Persons other than those described in the immediately following clause (B), (b) ; and (cB) $5 million acquired in connection with the acquisition of Media4;
(vii) Existing Indebtedness;
(viii) the incurrence of Purchase Money Indebtedness by the Company or any Guarantor in an amount not to exceed the cost of construction, acquisition or improvement of assets used in any business permitted under Section 4.17 of this Section 4.08Indenture, being constructed, acquired or improved as well as any launch costs and insurance premiums related to such assets;
(ix) Hedging Obligations of the Company or any of its Restricted Subsidiaries may Incur each and all covering Indebtedness of the following:Company or such Restricted Subsidiary to the extent the notional principal amount of such Hedging Obligation does not exceed the principal amount of the Indebtedness to which such Hedging Obligation relates; PROVIDED, HOWEVER, that such Hedging Obligations are entered into to protect the Company and its Restricted Subsidiaries from fluctuation in interest rates on Indebtedness incurred in accordance with this Indenture;
(1x) Indebtedness of the Company or any Restricted Subsidiary in respect of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance performance bonds or creation of letters of credit of the Company or any Restricted Subsidiary or surety bonds provided by the Company or any Restricted Subsidiary incurred in the ordinary course of business and bankers’ acceptances thereunder or on ordinary business terms in connection therewith with the businesses permitted under Section 4.17 of this Indenture;
(with letters xi) Indebtedness of credit the Company or any Guarantor the proceeds of which are used solely to finance the construction and bankers acceptances being deemed to have development of a principal amount equal to call center owned by the face amount Company or a Guarantor in McKeesport, Pennsylvania or any refinancing thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) ; PROVIDED that the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of all Indebtedness incurred pursuant to this clause (y), the Company and its Restricted Subsidiaries are xi) shall in compliance with paragraphs (a) and (b) above) plus (2) in the case of no event exceed $10 million at any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancingone time outstanding;
(2xii) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced the incurrence by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge substitute or refund other outstanding in whole or in part Indebtedness (other than referred to in the first paragraph of this Section 4.09 or in clauses (1i), (2ii), (6iii), (10vi) or (vii) above ("Refinancing Indebtedness"); PROVIDED, (11) and (13) of this Section 4.08(d)) plus the aggregate amount of feesHOWEVER, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
that: (A) the principal amount of such new Indebtedness, by its terms or by Refinancing Indebtedness shall not exceed the terms principal amount and accrued interest of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtednessso extended, determined as of the date of Incurrence of such new Indebtednessrefinanced, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinancedrenewed, replaced, substituted or refunded and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; any premiums payable and provided furtherreasonable fees, that expenses, commissions and costs in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5)connection therewith;
Appears in 1 contract
Sources: Indenture (Echostar DBS Corp)
Incurrence of Indebtedness. (a) The Company will not, and nor will not it permit any of its Restricted Subsidiaries Subsidiary to, Incur at any time create, issue, incur (by conversion, exchange or otherwise), assume, guarantee or otherwise become liable in respect of any Indebtedness if, immediately after giving effect to the Incurrence of such (including Acquired Indebtedness) other than Permitted Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets (as of any date of Incurrencedefined below).
(b) The Company will not, and provisions of Section 4.09(a) hereof will not permit prohibit the incurrence of any of its Restricted Subsidiaries tothe following items of Indebtedness (collectively, Incur any Subsidiary “Permitted Indebtedness”):
(1) Indebtedness or any under the Senior Secured Indebtedness if, immediately after giving effect Credit Facility in an aggregate principal amount not to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, exceed $3,500.0 million less the aggregate principal amount of all Indebtedness under the Senior Secured Credit Facility permanently repaid (which, if such Indebtedness under the Senior Secured Credit Facility is revolving credit Indebtedness, is accompanied by a corresponding reduction of the commitment with respect thereto) with the Net Cash Proceeds from any Asset Sale of Collateral;
(2) Indebtedness (other than Indebtedness described in the foregoing clause (1)) outstanding Subsidiary on the Issue Date and up to $2,150.0 million of Senior Secured Notes (including Senior Secured Notes issued on the Issue Date) issued in exchange for Existing Notes maturing prior to December 31, 2009 and up to $6,250.0 million of Notes (including the Initial Notes) issued in exchange for any other Existing Notes;
(3) Permitted Funding Indebtedness;
(4) Indebtedness among the Company and Secured its Subsidiaries;
(5) Indebtedness under interest rate agreements and currency exchange agreements entered into in the ordinary course of business and not for speculative purposes;
(6) Permitted Refinancing Indebtedness in respect of Indebtedness outstanding in reliance on clauses (2) and (3) above and this clause (6);
(7) Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.the Guarantors that is subordinated to the Notes and the Guarantees;
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any 8) Indebtedness if, after giving effect to the Incurrence of GMAC Parties incurred in accordance with the provisions described in Section 4.11, provided that such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).is not secured by any Collateral; and
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(19) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), not otherwise permitted hereunder in an aggregate principal amount or liquidation preference, which when aggregated with the principal amount and liquidation preference of all other Indebtedness then outstanding and incurred pursuant to this clause (9), does not at any one time outstanding not exceed $500.0 million. For purposes of determining compliance with this Section 4.09, and the outstanding principal amount of any particular Indebtedness incurred pursuant to exceed and in compliance with, this Section 4.09: (x) in the sum event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (1) through (x9) $3,400.0 million plus of this Section 4.09(b), the Company will, in its sole discretion, classify or reclassify, or later divide, classify or reclassify, such item of Indebtedness in any manner that complies with this Section 4.09 and such item of Indebtedness will be treated as having been incurred pursuant to only one of such clauses or pursuant to this covenant (provided that all Indebtedness outstanding under the Senior Secured Credit Facility will at all times be deemed to be outstanding pursuant to Section 4.09(b)(1) above); and (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, Disqualified Equity Interests will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life greater of the Subordinated Indebtedness to be Refinanced; and provided furthermaximum mandatory redemption or repurchase price (not including, that in no event may Indebtedness of either case, any redemption or repurchase premium) or the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);liquidation preference thereof.
Appears in 1 contract
Sources: Indenture (Residential Capital, LLC)
Incurrence of Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount ratio of all outstanding consolidated Indebtedness of the Company and its the Restricted Subsidiaries on a consolidated basis would be greater than 65% of to Adjusted Total Assets as of any date of Incurrencewould exceed 0.65 to 1.00.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount ratio of all outstanding Subsidiary Indebtedness and consolidated Secured Indebtedness of the Company and its the Restricted Subsidiaries on a consolidated basis would be greater than 45% of to Adjusted Total Assets as of any date of Incurrencewould exceed 0.40 to 1.00.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 1.50 to 1.0 1.0; provided that for purposes of calculating the Interest Coverage Ratio pursuant to this clause (c), for each of the first four (4) full Fiscal Quarters commencing with the Fiscal Quarter beginning on July 1, 2020, Consolidated EBITDA for any such Fiscal Quarter shall be calculated on a Pro Forma Basis)as the greater of (x) Consolidated EBITDA in such Fiscal Quarter and (y) zero; provided, further that, for so long as any Subsidiary of the Company Guarantees the Notes, the amount of additional Indebtedness that may be Incurred from and after the Issue Date by Restricted Subsidiaries that are not Subsidiary Guarantors under this clause (c) shall not exceed the greater of $900.0 million and an amount equal to 7.0% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding.
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) the greater of $3,400.0 4,000.0 million plus (y) the aggregate principal and an amount equal to 30.0% of Adjusted Total Assets at any time outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing Refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancingRefinancing;
(2) Indebtedness owed to:
(A) The Company an Issuer or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company an Issuer or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the CompanyIssuers, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law)Guarantor; and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue DateDate and the Note Guarantees;
(4) Indebtedness outstanding as of the Issue DateDate (including the Existing Senior Secured Notes, but excluding Indebtedness described in clause (1) above);
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund refund, other outstanding Indebtedness that was incurred under the provisions of paragraph (other than clauses (1a), (2b) or (c) of this covenant or clauses (3), (64), (5), (8), (9), (10), (1114), (17), (18), (24), (25) and or (1327) of this Section 4.08(d)) , in an amount not to exceed the amount so Refinanced plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums premiums, customary reserves required to be funded and maintained in connection with such Indebtedness and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance” or a “Refinancing”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, Indebtedness will be permitted under this clause (5) only if:if (except in the case of COVID-19 Relief Funds and Refinancings thereof):
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes, if applicable; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the earlier of (i) the Stated Maturity of the Subordinated Indebtedness to be Refinanced, or (ii) the date that is 91 days after the Stated Maturity of the Notes, and the Average Life of such new Indebtedness is at least equal to the earlier of (1) the remaining Average Life of the Subordinated Indebtedness to be Refinanced, or (2) 91 days more than the Average Life of the Notes; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);
(6) (i) obligations (contingent or otherwise) existing or arising under any Hedging Obligations or Swap Contracts (including Secured Hedge Agreements) entered into for the purpose of mitigating risks associated with fluctuations in interest rates (including both fixed to floating and floating to fixed contracts), foreign exchange rates or commodity price fluctuations in a non-speculative manner and (ii) Indebtedness consisting of any Permitted Bond Hedge Transaction or any Permitted Warrant Transaction;
(7) Indebtedness under Secured Cash Management Agreements, cash pooling agreements with hotel management companies and in respect of netting services, the Overdraft Line and otherwise in connection with deposit accounts, commercial credit cards, stored value cards, purchasing cards and treasury management services, including any obligations pursuant to Cash Management Agreements, and other netting services, overdraft protections, automated clearing-house arrangements, employee credit card programs, controlled disbursement, ACH transactions, return items, interstate depository network service, Society for Worldwide Interbank Financial Telecommunication transfers, cash pooling and operational foreign exchange management, and in each case, similar arrangements and otherwise in connection with cash management, including cash management arrangements among the Company and its Subsidiaries;
(8) (A) Finance Leases, synthetic lease obligations, purchase money obligations or mortgage financings Incurred after the Issue Date and (B) Indebtedness secured by purchase money Liens, in an aggregate outstanding principal amount for clauses (A) and (B) on a combined basis Incurred from and after the Issue Date not to exceed the greater of $350.0 million and an amount equal to 2.5% of Adjusted Total Assets at any time outstanding; provided, however, that, subject to clause (g), any Refinancing Incurred under clause (5) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (8) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (8);
(9) Indebtedness of the Company, to the extent the net proceeds therefrom are promptly:
(A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change of Control Triggering Event; or
(B) deposited to defease or discharge the Notes as described in Articles 8 and 11 hereof;
(10) Indebtedness incurred in connection with any Sale and Leaseback Transaction;
(11) customer deposits and advance payments received from customers in the ordinary course of business;
(12) any Guarantee issued by the Company pursuant to the matters described in any indemnity agreements entered into for the benefit of a title company that has been engaged by the Company or any of its Restricted Subsidiaries;
(13) Guarantees by the Company or any Restricted Subsidiary of any Indebtedness of the Company or any Restricted Subsidiary; provided that such Indebtedness was permitted to be Incurred pursuant to this covenant other than under this clause (13); provided further that any such Guarantees by an Issuer or any Subsidiary Guarantor of any Indebtedness of any Restricted Subsidiary that is not an Issuer or a Subsidiary Guarantor is subordinated in right of payment to the obligations of the Issuers and the Subsidiary Guarantors under the Notes;
(14) Guarantees issued by the Company or any of its Restricted Subsidiaries of any Indebtedness of Joint Ventures or Unrestricted Subsidiaries Incurred from and after the Issue Date in an amount not to exceed the greater of $250.0 million and 2.0% of Adjusted Total Assets at any time outstanding, if both before and after giving effect to the incurrence of each such Guarantee, no Default or Event of Default has occurred or is continuing; provided, however, that, subject to clause (g), any Refinancing Incurred under clause (5) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (14) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (14);
(15) Indebtedness of the Company or any of its Restricted Subsidiaries supported by a letter of credit issued under any Credit Facilities in an aggregate principal amount not to exceed the stated amount of such letter of credit (but which stated amount may include the amount of any anticipated premiums, expenses (including upfront fees and original issue discount) and any accretion in the principal amount thereof);
(16) contractual indemnity obligations entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of ownership or operation of their respective Properties;
(17) Indebtedness (A) of a Person outstanding on the date of any acquisition of such Person, including through the acquisition of a Person that becomes a Restricted Subsidiary or is acquired by, or merged or consolidated with or into, the Company or any Restricted Subsidiary, or that is assumed by the Company or any Restricted Subsidiary in connection with any such acquisition (other than Indebtedness incurred by such Person in connection with, or contemplation of, such acquisition, merger or consolidation), (B) Incurred to provide all or any portion of the funds utilized to acquire, or to consummate the transaction or series of related transactions in connection with or in contemplation of any acquisition, of a Person that becomes a Restricted Subsidiary, (C) assumed in connection with an asset acquisition by the Company or a Restricted Subsidiary or (D) Incurred in connection with any Investment in a third party permitted under this Indenture, in each case under this clause (17), as long as immediately after giving effect thereto, either (i) the Interest Coverage Ratio on a Pro Forma Basis would be at least 1.50 to 1.0 or (ii) the Interest Coverage Ratio on a Pro Forma Basis would be greater than or equal to the actual Interest Coverage Ratio immediately prior to such acquisition, incurrence or assumption, in each case under this clause (17), with the Interest Coverage Ratio calculated in accordance with clause (c) above;
(18) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, together with any other Indebtedness Incurred from and after the Issue Date pursuant to this clause (18) or clause (c) above by such Restricted Subsidiaries, in an amount not to exceed the greater of $900.0 million and an amount equal to 7.0% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding; provided, however, that, subject to clause (g), any Refinancing Incurred under clause (5) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (18) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (18);
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 2,900.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law)Guarantor; and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue DateDate (other than Indebtedness outstanding under Credit Facilities);
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);
Appears in 1 contract
Sources: Indenture (MGM Growth Properties Operating Partnership LP)
Incurrence of Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Total Net Debt to Adjusted Total Assets as of any date of IncurrenceRatio would exceed 0.65 to 1.00.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Senior Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Net Debt to Adjusted Total Assets as of any date of IncurrenceRatio would exceed 0.45 to 1.00.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis)1.0; provided that the amount of Indebtedness that may be Incurred by Restricted Subsidiaries that are not Subsidiary Guarantors shall not exceed the greater of $800.0 million and an amount equal to 8.0% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding .
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) the greater of $3,400.0 4,000.0 million and an amount equal to 40.0% of Adjusted Total Assets at any time outstanding, plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma Pro Forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing Refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancingRefinancing;
(2) Indebtedness owed to:
(A) The the Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date, the 2029 Notes to be issued on the Issue Date, the Note Guarantees and the 2029 Note Guarantees;
(4) Indebtedness outstanding as of the Issue DateDate (other than Indebtedness described in clause (1) above);
(5) the PropCo Notes and the Guarantees of the PropCo Notes;
(6) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness that was incurred under the provisions of paragraph (other than clauses (1a), (2b) or (c) of this covenant or clauses (3), (4), (5), (6), (9), (10), (11), (15), (18), (19) and or (1327) of this Section 4.08(d)) , in an amount not to exceed the amount so Refinanced plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance” or a “Refinancing”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (56) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes, if applicable; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the earlier of (i) the Stated Maturity of the Subordinated Indebtedness to be Refinanced, or (ii) the date that is 91 days after the Stated Maturity of the Notes, and the Average Life of such new Indebtedness is at least equal to the earlier of (1) the remaining Average Life of the Subordinated Indebtedness to be Refinanced, or (2) 91 days more than the Average Life of the Notes; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (56);
(7) obligations (contingent or otherwise) existing or arising under any Hedging Obligations or Swap Contracts (including Secured Hedge Agreements) entered into for the purpose of mitigating risks associated with fluctuations in interest rates (including both fixed to floating and floating to fixed contracts), foreign exchange rates or commodity price fluctuations in a non-speculative manner;
(8) Indebtedness under Secured Cash Management Agreements and in respect of netting services, the Overdraft Line and otherwise in connection with deposit accounts, commercial credit cards, stored value cards, purchasing cards and treasury management services, including any obligations pursuant to Cash Management Agreements, and other netting services, overdraft protections, automated clearing-house arrangements, employee credit card programs, controlled disbursement, ACH transactions, return items, interstate depository network service, Society for Worldwide Interbank Financial Telecommunication transfers, cash pooling and operational foreign exchange management, and in each case, similar arrangements and otherwise in connection with cash management, including cash management arrangements among the Company and its Subsidiaries;
(9) (A) Finance Leases, synthetic lease obligations, purchase money obligations or mortgage financings Incurred after the Issue Date and (B) Indebtedness secured by purchase money Liens, in an aggregate outstanding principal amount for clauses (A) and (B) on a combined basis not to exceed the greater of $200.0 million and an amount equal to 2.0% of Adjusted Total Assets at any time outstanding, provided, however, that, subject to clause (g), any Refinancing Incurred under clause (6) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (9) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (9);
(10) Indebtedness of the Company, to the extent the net proceeds therefrom are promptly:
(A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change of Control; or
(B) deposited to defease or discharge the Notes as described in Articles 8 and 11 hereof;
(11) Indebtedness incurred in connection with any Sale and Leaseback Transaction;
(12) customer deposits and advance payments received from customers in the ordinary course of business;
(13) any Guarantee issued by the Company pursuant to the matters described in any indemnity agreements entered into for the benefit of a title company that has been engaged by the Company or any of its Restricted Subsidiaries;
(14) Guarantees by the Company or any Restricted Subsidiary of any Indebtedness of the Company or any Restricted Subsidiary; provided that such Indebtedness was permitted to be Incurred pursuant to this covenant other than under this clause (14); provided further that any such Guarantees by the Company or any Subsidiary Guarantor of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor is subordinated in right of payment to the obligations of Company and the Subsidiary Guarantors under the Notes;
(15) Guarantees issued by the Company or any of its Restricted Subsidiaries of any Indebtedness of Joint Ventures or Unrestricted Subsidiaries in an amount not to exceed the greater of $200.0 million and 2.0% of Adjusted Total Assets at any time outstanding, if both before and after giving effect to the incurrence of each such Guarantee, no Default or Event of Default has occurred or is continuing, provided, however, that, subject to clause (g), any Refinancing Incurred under clause (6) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (15) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (15);
(16) Indebtedness of the Company or any of its Restricted Subsidiaries supported by a letter of credit issued under any Credit Facilities in an aggregate principal amount not to exceed the stated amount of such letter of credit (but which stated amount may include the amount of any anticipated premiums, expenses (including upfront fees and original issue discount) and any accretion in the principal amount thereof);
(17) contractual indemnity obligations entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of ownership or operation of their respective properties;
(18) Indebtedness (A) of a Person that becomes a Restricted Subsidiary after the Issue Date, that existed at the time such Person became a Restricted Subsidiary and was not created (but may have been amended) in anticipation or contemplation thereof, (B) Incurred to provide all or any portion of the funds utilized to acquire, or to consummate the transaction or series of related transactions in connection with or in contemplation of any acquisition of a Person that becomes a Restricted Subsidiary, (c) assumed in connection with an asset acquisition by the Company or a Restricted Subsidiary and (D) Incurred in connection with any Investment in a third party permitted under this Indenture, in each case under this clause (18), as long as immediately after giving effect thereto, either (i) the Interest Coverage Ratio on a Pro Forma Basis would be at least 2.0 to 1.0 or (ii) in the case of subclause (A) only, the Interest Coverage Ratio on a Pro Forma Basis would be greater than or equal to the actual Interest Coverage Ratio immediately prior to such acquisition, incurrence or assumption.
(19) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, together with any other Indebtedness incurred by such Restricted Subsidiaries pursuant to this covenant, in an amount not to exceed the greater of $800.0 million and an amount equal to 8.0% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding, provided, however, that, subject to clause (g), any Refinancing Incurred under clause (6) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (19) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (19);
Appears in 1 contract
Sources: Indenture (Vici Properties Inc.)
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to (collectively, "incur") any Indebtedness if(including Acquired Debt); PROVIDED, immediately after giving effect to HOWEVER, that, notwithstanding the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of foregoing the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
Guarantor may incur Indebtedness (b) The Company will notincluding Acquired Debt), and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence incurrence of such Indebtedness and the receipt and application of the net proceeds therefromthereof on a pro forma basis, the Interest Coverage Indebtedness to Cash Flow Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 not have exceeded 8.0 to 1.0 (calculated on a Pro Forma Basis).1. The foregoing limitation will not apply to any of the following incurrences of Indebtedness:
(di) Notwithstanding clauses Indebtedness represented by the Notes, the Guarantees and the Indenture;
(a), (bii) and (c) of this Section 4.08, the incurrence by the Company or any Guarantor of its Restricted Subsidiaries may Incur each and all of the following:Acquired Subscriber Debt not to exceed $1,250 per Acquired Subscriber;
(1iii) the incurrence by the Company or any Guarantor of Deferred Payments and letters of credit with respect thereto; (iv) Indebtedness of the Company or any of Guarantor that ranks PARI PASSU with or is subordinated to the Subsidiary Guarantors outstanding under Credit Facilities Notes and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), Guarantees in an aggregate principal amount not to exceed $700 million at any one time outstanding, which Indebtedness may be secured to the extent permitted under Section 4.12 of this Indenture; PROVIDED that up to $75 million at any one time outstanding of such Indebtedness may be incurred by Restricted Subsidiaries that are not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of Guarantors; PROVIDED further that any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness incurred pursuant to this clause (y), iv) that is incurred pursuant to a Credit Agreement shall be incurred pursuant to a Credit Agreement under which the Company is the sole primary obligor (and its Restricted Subsidiaries are in compliance with paragraphs under which the Guarantors (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any no other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence may guarantee the primary obligations of such Indebtedness not permitted by this clause (2)(Bthe Company);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);
Appears in 1 contract
Sources: Indenture (Echostar DBS Corp)
Incurrence of Indebtedness. (a) The Company will Parent Guarantor shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, Incur, directly or indirectly, any Indebtedness; provided, however, that the Parent Guarantor or a Restricted Subsidiary may Incur any Indebtedness if, immediately on the date of such Incurrence and after giving effect thereto, both (1) the Consolidated Coverage Ratio equals or exceeds 2.5 to 1.0 and (2) Adjusted Consolidated Net Tangible Assets equals or exceeds 150% of the Incurrence aggregate consolidated Indebtedness of such Indebtedness the Parent Guarantor and the receipt Restricted Subsidiaries.
(b) Notwithstanding the preceding paragraph (a), the Parent Guarantor and application of any Restricted Subsidiary may Incur the proceeds therefromfollowing Indebtedness:
(1) Indebtedness Incurred pursuant to any Working Capital Revolver, so long as the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount all Working Capital Revolvers does not at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing20,000,000;
(2) Indebtedness owed to:
(A) The Company to and held by the Parent Guarantor or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Wholly Owned Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligorprovided, the Indebtedness is subordinated in right of payment to the Noteshowever, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event subsequent issuance or transfer of any Capital Stock which results in any such Restricted Wholly Owned Subsidiary ceasing to be a Restricted Wholly Owned Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company Parent Guarantor or any other Restricted another Wholly Owned Subsidiary) shall be deemed, in each case, to constitute an the Incurrence of such Indebtedness not permitted by this clause (2)(B)the issuer thereof;
(3) the Notes to be issued on (other than the Issue DateTack-On Senior Secured Notes), this Indenture, the Security Documents, the Parent Guarantee and the Subsidiary Guarantees;
(4) Indebtedness outstanding as of on the Issue Closing Date, to the extent not discharged in the Company's bankruptcy case;
(5) Refinancing Indebtedness issued in exchange forrespect of Indebtedness Incurred pursuant to paragraph (a) or pursuant to clause (3) or (4) above or clause (6) below; 52 60
(6) Indebtedness of the Parent Guarantor or a Restricted Subsidiary represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case Incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property used in the Oil and Gas Business and in each case Incurred no later than 365 days after the date of such acquisition or the net proceeds date of which are used completion of such construction or improvement; provided, however, that the principal amount of all such Indebtedness at any one time outstanding shall not exceed $5,000,000;
(7) Indebtedness consisting of Interest Rate Agreements directly related to extend, refinance, renew, replace, defease, discharge Indebtedness permitted to be Incurred by the Parent Guarantor and the Restricted Subsidiaries pursuant to this Section 4.09;
(8) Indebtedness under Oil and Gas Hedging Contracts entered into in the ordinary course of business for the purpose of limiting risks that arise in the ordinary course of business of the Parent Guarantor and the Restricted Subsidiaries or refund other outstanding Indebtedness required to be entered into by the Parent Guarantor and the Restricted Subsidiaries under the provisions of Section 4.25 hereof and under certain revolving credit or loan agreements or letters of credit reimbursement agreements (other than clauses "Hedge Liquidity Agreements") to permit the Parent Guarantor or any of the Restricted Subsidiaries to provide letters of credit as margin in lieu of the collateral to secure excess market exposure and settlement and related amounts due on early termination under the Approved Hedge Agreement and Security Documents;
(1), (2), (6), 9) Non-Recourse Indebtedness;
(10), (11) and (13) the Guarantee by the Parent Guarantor or any of the Restricted Subsidiaries of Indebtedness that was permitted to be incurred by another clause of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes4.09; and
(B11) such new IndebtednessIndebtedness in an aggregate principal amount which, determined as together with the principal amount of all other Indebtedness of the Parent Guarantor and the Restricted Subsidiaries outstanding on the date of such Incurrence of such new Indebtedness, (other than Indebtedness permitted by clauses (1) through (10) above or paragraph (a)) does not mature prior exceed $5,000,000.
(c) Notwithstanding the preceding, the Parent Guarantor and the Restricted Subsidiaries shall not Incur any Indebtedness pursuant to the Stated Maturity of preceding paragraph (b) if the proceeds thereof are used, directly or indirectly, to Refinance any Subordinated Obligations unless such Indebtedness to shall be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment subordinated to the Notes or to at least the same extent as such Subsidiary Subordinated Obligations.
(d) For purposes of determining compliance with the preceding clauses, (i) in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described above, the Parent Guarantor’s Note Guarantee, as applicablein its sole discretion, will classify such item of Indebtedness and only be Refinanced by means required to include the amount and type of any such Indebtedness in one of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause the above clauses and (5);ii) an item of Indebtedness may be divided and classified in more than one of the types of Indebtedness described above.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries the Guarantors to, Incur any directly or indirectly, incur Indebtedness ifthat will constitute First Lien Debt, immediately after giving effect to unless the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
CNTA Ratio (b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences incurrence and the application of Indebtedness pursuant the net proceeds thereof) is equal to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and or greater than 1.42 to 1.00.
(b) above) plus (2) in the case For purposes of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereofSection 4.07, the aggregate amount of feesFirst Lien Debt outstanding as of any date of determination will be calculated as the sum of, underwriting discountswithout duplication:
(1) the aggregate outstanding principal amount of all Indebtedness (or, accrued and unpaid interestif such Indebtedness is issued with original issue discount, premiums and other costs and expenses Incurred in connection with such refinancing;the then accreted value thereof) for borrowed money that constitutes First Lien Debt, plus
(2) the aggregate face amount of any letters of credit or similar instruments issued but not yet drawn that, when drawn, would constitute First Lien Debt, and the aggregate amount of reimbursement obligations in respect of drawn letters of credit or similar instruments that constitute First Lien Debt, plus
(3) the aggregate amount of undrawn and unutilized commitments under which any First Lien Debt could be drawn and/or utilized as of such date, plus
(4) the aggregate outstanding principal amount of any First Lien Debt (or, if such Indebtedness owed is issued with original issue discount, the then accreted value thereof) outstanding consisting of notes, bonds, debentures, credit agreements (including any Eligible Commodity Hedge Financing) or similar instruments or agreements.
(c) Section 4.07(a) hereof will not apply to:
(1) any Specified Cash Management and Swap Obligations, other Cash Management Obligations that would constitute First Lien Debt and any First Lien Hedging Obligations;
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
Indebtedness under the Credit Agreement outstanding on the date of this Indenture (other than amounts being repaid with the proceeds of this offering), plus (B) the 2017 Notes, plus (C) up to $2.0 billion in incremental term debt thereunder (or debt securities issued in lieu thereof) incurred to repay or redeem secured debt, secured lease obligations or preferred securities of any other Restricted Subsidiary; provided Project Subsidiary pursuant to the provisions of Section 2.27(a) thereof as in effect on the 2017 Notes Issue Date (or as amended or waived, but solely with regard to any amendment or waiver of (i) any most favored nation pricing required thereunder, (ii) the Schedule Limit as set forth therein or (iii) the requirement that if the Company or be in pro forma compliance with any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(Bfinancial covenants thereunder);
(3) the Notes to be issued hereby on the Issue Datedate of this Indenture;
(4) any accretion of original issue discount or the payment of interest on any Indebtedness in the form of Indebtedness with the same terms (it being understood that each will be taken into account in determining the aggregate amount of First Lien Debt outstanding as of the Issue Datespecified in Section 4.07(b)(1) hereof);
(5) any incurrence of Indebtedness issued in exchange forthat constitutes First Lien Debt (A) resulting from the drawing of, or reimbursement obligations under, any letters of credit or similar instruments or (B) resulting from borrowings under any undrawn and unutilized commitments to lend such Indebtedness, in each case, that were (i) in existence as of the net proceeds 2017 Notes Issue Date (including without limitation under the Credit Agreement, as in effect on the date of which are used this Indenture) or (ii) included in any calculation of the amount of First Lien Debt outstanding pursuant to extendSection 4.07(b) hereof in connection with an incurrence of First Lien Debt pursuant to Section 4.07(a) hereof; and, in either case, any Permitted Replacement Commitments that replaced such letters of credit, similar obligations and commitments;
(6) any Permitted Refinancing Indebtedness incurred to renew, refund, refinance, renew, replace, defeasedefease or discharge any Indebtedness that was permitted to be incurred pursuant to this Section 4.07; and
(7) any Eligible Commodity Hedge Financings, discharge so long as the lenders thereunder (or refund other outstanding their representatives on their behalf) become a party to, or consent or agree to be bound by the terms and conditions, of the Collateral Agency and Intercreditor Agreement.
(d) Notwithstanding the foregoing, the Company or any of the Guarantors may not incur (1) additional Indebtedness (other than Specified Cash Management and Swap Obligations, other Cash Management Obligations that would constitute First Lien Debt, any First Lien Hedging Obligations and any extension, renewal or refinancing of the Eligible Commodity Hedge Financings existing on the 2017 Notes Issue Date) pursuant to Section 4.07(a) hereof, (2) any Permitted Refinancing Indebtedness with respect to Indebtedness incurred under clauses (1), (2), (63), (10), 4) or (11) and (135) of this Section 4.08(d)4.07(c) plus hereof or (3) any Permitted Refinancing Indebtedness with respect to any of the aggregate amount foregoing, in each case that will constitute First Lien Debt unless:
(1) The Company and the Guarantors shall enter into, and deliver to the Collateral Agent, in the sole discretion of feesthe Collateral Agent, underwriting discountsa mortgage modification or new mortgage with regard to each Mortgaged Property, accrued and unpaid interestin proper form for recording in all applicable jurisdictions, premiums and other costs and expenses Incurred in a form reasonably satisfactory to the Collateral Agent and, as applicable, consistent with the mortgage modifications delivered in connection with the issuance of the Notes;
(2) The Company or the applicable Guarantor will cause to be delivered a local counsel opinion with respect to each Mortgaged Property in form and substance, and issued by law firms, in each case, reasonably satisfactory to the Collateral Agent and, as applicable, consistent with the local counsel opinions delivered in connection with the issuance of the Notes;
(3) The Company or the applicable Guarantor will cause a title company approved by the Collateral Agent to have delivered to the Collateral Agent an endorsement to each title insurance policy then in effect for the benefit of the Secured Parties, date down(s) or other evidence reasonably satisfactory to the Collateral Agent (which may include a new title insurance policy) (each such refinancing (any such actiondelivery, to a “RefinanceTitle Datedown Product”), in an amount each case insuring that (i) the priority of the Lien of the applicable mortgage(s) as security for the Notes has not changed, (ii) since the date of the Title Datedown Product delivered most recently prior to exceed the amount so Refinanced; provided that (and not in connection with) such additional Indebtedness, there has been no change in the proceeds condition of title and (iii) there are no intervening liens or encumbrances which are used may then or thereafter take priority over the Lien of the applicable mortgage(s), in each case other than with respect to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the NotesPermitted Liens; and
(B4) such new IndebtednessThe Company or the applicable Guarantor will, determined as upon the request of the date of Incurrence of such new IndebtednessCollateral Agent, does not mature prior deliver to the Stated Maturity approved title company, the Collateral Agent and/or all other relevant third parties all other items reasonably necessary to maintain the continuing priority of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life Lien of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of mortgages as security for the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);Notes.
Appears in 1 contract
Sources: Indenture (Calpine Corp)
Incurrence of Indebtedness. (a) The Company will Parent Guarantor shall not, and will shall not permit the Issuer or any of its Restricted Subsidiaries other Subsidiary to, Incur directly or indirectly, create, incur, assume or guaranty or otherwise become or remain directly or indirectly liable with respect to any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater other than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness existing on the Closing Date (other than Indebtedness described in clauses (v) and (vi)), (2) Indebtedness incurred pursuant to the payment-in-kind of interest or additional amounts in respect thereof, to the Company extent the Parent Guarantor or any of its Subsidiaries is permitted to pay such payment-in-kind interest pursuant to the Subsidiary Guarantors terms of such Indebtedness in effect as of the Closing Date, and (3) Indebtedness outstanding under Credit Facilities on the Closing Date, and (4) Indebtedness to be incurred pursuant to the issuance of the First Out Exchangeable Notes, the Second Out Exchangeable Notes and the issuance Notes (including the payment- in-kind of interest or creation additional amounts in respect thereof in compliance with the terms of letters of credit the Second Out Exchangeable Notes in effect on the Closing Date thereof);
(ii) Indebtedness arising from customary indemnification or other similar obligations under the Notes Documents and bankers’ acceptances thereunder or the other agreements entered into on the Restructuring Closing Date in connection therewith (with letters or permitted replacements or amendments thereto that do not expand the scope of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereofobligations thereunder), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2iii) Indebtedness of the Issuer or any Subsidiary owed to:
(A) The Company to the Parent Guarantor, the Issuer or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or (x) any Indebtedness owed to any Subsidiary Guarantor that is not an obligor, the Indebtedness is Obligor (A) shall be subordinated in right of payment to the NotesNotes as contemplated by Section 9.01 and (B) shall not exceed an aggregate outstanding principal amount of US$1.0 million, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event which results in y) upon any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (being owed to any Person other than to the Company Parent Guarantor, the Issuer or any other Restricted Subsidiary) , the Parent Guarantor, the Issuer or such other Subsidiary, as applicable, shall be deemed, in each case, deemed to constitute an Incurrence of such have incurred Indebtedness not permitted by this clause (2)(Biii);; and
(3) the Notes to be issued on the Issue Date;
(4iv) Indebtedness outstanding from time to time under the credit agreement dated May 27, 2024 entered into between Azul Investments, as of borrower, and the Issue Date;
(5) Indebtedness issued in exchange forParent Guarantor and Azul Linhas, or the net proceeds of which are used to extendas guarantors, refinanceand Citibank, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that IndebtednessN.A., the proceeds of which are used for engine maintenance, and any refinancing thereof incurred in compliance with clauses (3) and (4) within the definition of Required Debt Terms in the maximum aggregate principal amount at any time outstanding not to Refinance Subordinated Indebtedness, will be permitted under this exceed US$210.0 million;
(v) Specified Debt; provided that (x)(I) the Specified Debt described in clause (5i) of the definition of Specified Debt shall be unsecured and (II) Indebtedness described in clauses (ii) and (iii) of the definition of Specified Debt shall only if:be secured by ▇▇▇▇▇ described in clause (14) of the definition of Permitted Liens, (y) in respect of any Specified Debt incurred on or prior to July 1, 2026, (I) the aggregate principal amount of all Specified Debt outstanding shall not to exceed the Specified Debt Cap (it being understood, for avoidance of doubt, that the aggregate principal amount of all Specified Debt shall include the outstanding aggregate principal amount of the Notes), (II) no Default or Event of Default has occurred, is continuing or would result therefrom and (z) solely with respect to Indebtedness described in clause (ii) of the definition of Specified Debt that does not constitute a Qualified Receivables Transaction or that is for working capital purposes and that is not secured by Credit and Debit Card Receivables, after July 1, 2026, on a pro forma basis, including after giving effect to such incurrence, the Total Leverage Ratio (calculated, for the purposes of this paragraph (v), excluding current and long-term leases (as determined in accordance with IFRS)) is equal to or less than 3.5 to 1.00;
(Avi) Hedging Obligations; provided that such new Indebtednessagreements (x) are entered into in the ordinary course of business solely to protect such Person against fluctuations in foreign currency exchange rates, by its terms interest rates, or commodity prices and (y) do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates, interest rates, or commodity prices or by the terms reason of any agreement fees, indemnities and compensation payable thereunder;
(vii) Aircraft Financing;
(viii) Permitted Refinancing Indebtedness of Indebtedness incurred under clauses (i), (viii), (ix) or instrument pursuant to which such new (xi) hereof;
(ix) on and after July 1, 2025, unsecured Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes that (x) matures at least to 91 days after the extent Maturity Date, (y) that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature have any scheduled amortization or mandatory prepayments of principal prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);Date and
Appears in 1 contract
Sources: Indenture
Incurrence of Indebtedness. (a) The Prior to the Investment Grade Date, the Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur directly or indirectly create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, "INCUR"), any Indebtedness if(including Acquired Debt) or issue any Disqualified Stock; PROVIDED, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromHOWEVER, the aggregate principal amount of all outstanding Indebtedness of that the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each incur Indebtedness (including Acquired Debt) and all issue Disqualified Stock if the Fixed Charge Coverage Ratio for the Company's most recently ended four full fiscal quarters for which financial statements are available immediately preceding the date on which such Indebtedness is incurred or Disqualified Stock is issued would have been at least 3.25 to 1, determined on a PRO FORMA basis (including a PRO FORMA application of the following:
net proceeds therefrom), as if such Indebtedness had been incurred or such Disqualified Stock had been issued at the beginning of such four-quarter period. The foregoing provisions will not apply to (1i) Indebtedness of Permitted Refinancing Indebtedness; (ii) the incurrence by the Company or of any amount of Subordinated Indebtedness if the Subsidiary Guarantors outstanding Fixed Charge Coverage Ratio for the Company's most recently ended four full fiscal quarters for which financial statements are available immediately preceding the date on which such Subordinated Indebtedness is incurred would have been at least 1.75 to 1 (determined as in the immediately preceding paragraph); (iii) Permitted Hedging Agreements; (iv) borrowings under the Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), Facility in an aggregate principal amount at any one time outstanding not to exceed the sum of $804.4 million; and (1v) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of intercompany Indebtedness pursuant to this clause (y), between and among the Company and any of its Restricted Subsidiaries are (except in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereofa TIPES Transaction); PROVIDED, the aggregate amount of feesHOWEVER, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
that (A) The Company any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than a Restricted Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
and (B) any sale or other Restricted Subsidiary; provided transfer of any such Indebtedness to a Person that if is not either the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note GuaranteeRestricted Subsidiary, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);the case may be.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, Incur directly or indirectly, incur any Indebtedness, other than Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness between or among any of the Company and its Restricted Subsidiaries Subsidiaries, unless, after giving effect thereto, the Fixed Charge Coverage Ratio as of the date of such incurrence is greater than or equal to 2.0 to 1.0 on a consolidated basis would be greater than 65% Pro Forma Basis; provided that Indebtedness incurred by a Non-Guarantor Subsidiaries pursuant to this paragraph shall not exceed (together with any Indebtedness of Adjusted Total Assets as Restricted Subsidiaries that are not Guarantors incurred pursuant to Section 4.09(b)(20) of the following paragraph) $250.0 million (plus, in the case of Permitted Refinancing Indebtedness, any date of IncurrenceAdditional Refinancing Amount) (the “Non-Guarantor Sublimit”).
(b) The Company will not, and provisions of Section 4.09(a) hereof will not permit prohibit, subject to the Non-Guarantor Sublimit, the incurrence of any of its Restricted Subsidiaries tothe following (collectively, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.“Permitted Debt”):
(c1) The Company will not, and will not permit the incurrence at any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, time by the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or Guarantees thereof in connection therewith an aggregate principal amount at any one time outstanding pursuant to this clause (1) (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed the sum of (1) (x) $3,400.0 775 million (plus, in the case of Permitted Refinancing Indebtedness, any Additional Refinancing Amount) plus (y) the an additional aggregate principal amount of any outstanding Incremental Term Loans Indebtedness that at the time of incurrence does not cause (provided that after giving pro forma effect to any such incurrences i) in the case of Indebtedness pursuant having Pari Passu Lien Priority relative to this clause (y)the Notes with respect to the Collateral, the Consolidated Senior Secured Leverage Ratio of the Company and its Restricted Subsidiaries are to exceed 3.00 to 1.0 on a Pro Forma Basis (plus, in compliance with paragraphs (athe case of Permitted Refinancing Indebtedness, any Additional Refinancing Amount) and (b) above) plus (2ii) in the case of any refinancing other Indebtedness, the Consolidated Total Secured Leverage Ratio of any the Company and its Restricted Subsidiaries to exceed 4.50 to 1.0 on a Pro Forma Basis; provided that, for purposes of determining the amount of Indebtedness permitted that may be incurred under this clause (1)(y), all Indebtedness incurred under this clause (1)(y) (or any Permitted Refinancing Indebtedness thereof) shall be treated as Consolidated Total Indebtedness secured by a Lien;
(2) the incurrence of Existing Indebtedness (including the 2025 Notes and 2029 Notes that remain outstanding after giving effect to the issuance of the Notes and the use of proceeds therefrom); provided that all of the 2025 Notes shall be repurchased, redeemed or otherwise discharged within 60 days after the Issue Date;
(3) the incurrence by the Company and the Guarantors of Indebtedness represented by the Notes and the Note Guarantees to be issued on the Issue Date;
(4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Finance 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 for fixed or capital assets, in an aggregate principal 4869-1723-0772 v.7 amount, including all Permitted Refinancing Indebtedness in respect thereof, not to exceed $100.0 million at any time outstanding (plus, in the case of Permitted Refinancing Indebtedness, any Additional Refinancing Amount);
(5) the incurrence by the Company or any Restricted Subsidiary 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 covenant or clauses (2) (other than the 2025 Notes), (3), (4), (5), (9), (10), (17), (19), (20) or (21) of this Section 4.09(b);
(6) 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) Indebtedness (A) of a Foreign Restricted Subsidiary or a foreign joint venture that is a Restricted Subsidiary owed to a Guarantor or a Foreign Restricted Subsidiary and (B) consisting of other intercompany Indebtedness (other than Indebtedness of (i) of any Guarantor owed to any other Guarantor, (ii) of a wholly owned Non-Guarantor Subsidiary owed to another wholly owned Non-Guarantor Subsidiary and (iii) of a wholly owned Non-Guarantor Subsidiary that is a Foreign Restricted Subsidiary owed to another wholly owned Non-Guarantor Subsidiary that is a Foreign Restricted Subsidiary); provided that, 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 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 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 owed to a Person other than the Company or a Restricted Subsidiary and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);
(7) 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 (7);
(8) the Guarantee by the Company or any of the Restricted Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary that was permitted to be incurred by another provision of this covenant;
(9) the incurrence of Monetization Indebtedness;
(10) the incurrence of Acquisition Indebtedness; provided that, immediately after giving effect to such transaction, either: 4869-1723-0772 v.7
(A) the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a), or
(B) the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries would be no lower than immediately prior to such transaction as a result of such transaction;
(11) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to the extent the net proceeds thereof are promptly deposited to satisfy and discharge this Indenture as described under Article 11;
(12) Indebtedness of the Company or any Restricted Subsidiary (i) in connection with surety, performance, appeal or similar bonds, completion Guarantees, or similar instruments entered into in the ordinary course of business or from letters of credit or other obligations in respect of property, casualty or liability insurance, self-insurance, workers’ compensation obligations or similar arrangements and (ii) consisting of the financing of insurance premiums or take-or-pay obligations contained in supply arrangements, in each case incurred in the ordinary course of business;
(13) Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts, such amount need not be inadvertent) drawn against insufficient funds in the ordinary course of business;
(14) Indebtedness of the Company or any Restricted Subsidiary arising from agreements for indemnification, earnouts or purchase price adjustment obligations or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligation of the Company or a Restricted Subsidiary pursuant to such an agreement, in each case incurred or assumed in connection with the acquisition or disposition of any business, assets or properties;
(15) cash management obligations and Indebtedness incurred in respect of netting services, overdraft protection and similar arrangements;
(16) Indebtedness consisting of obligations under deferred compensation, earnouts or other similar arrangements incurred by the Company or any Restricted Subsidiary in connection with the Transactions or any acquisition or Investment not prohibited by this Indenture;
(17) Guarantees by the Company and the Restricted Subsidiaries of obligations of the Company and its Restricted Subsidiaries and joint ventures arising under purchase or other acquisition agreements in respect of acquisitions or other Investments otherwise constituting Permitted Investments; provided that the aggregate principal amount of all such Guarantees pursuant to this clause (17) following the issuance of the Notes does not exceed, including all Permitted Refinancing Indebtedness in respect thereof, $20.0 million in the aggregate at any time outstanding (plus, in the case of Permitted Refinancing Indebtedness, any Additional Refinancing Amount). For purposes of determining compliance with this clause (17), the amount of any such Guarantee shall be the amount determined by the Company in good faith that, in the light of all the facts and circumstances existing on the date such purchase or other acquisition agreement is entered into, represents the amount of underlying obligations reasonably expected by the Company to be paid thereunder;
(18) Indebtedness under Hedging Obligations; provided that such contracts are not entered into for speculative purposes; 4869-1723-0772 v.7
(19) Indebtedness incurred by the Company or any Restricted Subsidiary that is a Special Purpose Producer which is non-recourse to the Company or any Restricted Subsidiary other than (x) any Special Purpose Producer other than pursuant to Negative Pick-up Obligations, Program Acquisition Guarantees or short-fall Guarantees, or any other customary Guarantee or non-recourse carve-out and (y) Guarantees for which recourse is limited solely to the Equity Interests in such Special Purpose Producer, so long as the aggregate principal amount of all such Indebtedness outstanding at any one time pursuant to this clause (19) shall not exceed $250,000,000 (plus, in the case of Permitted Refinancing Indebtedness, any Additional Refinancing Amount);
(20) Indebtedness of any Restricted Subsidiaries that are not Guarantors at the time of incurrence thereof in an aggregate principal amount, including all Permitted Refinancing Indebtedness in respect thereof, at any time outstanding not to exceed (together with any Indebtedness of Restricted Subsidiaries that are not Guarantors incurred pursuant to the first paragraph) the Non-Guarantor Sublimit (plus, in the case of Permitted Refinancing Indebtedness, any Additional Refinancing Amount);
(21) Indebtedness in an aggregate principal amount, including all Permitted Refinancing Indebtedness in respect thereof, at any time outstanding not to exceed $500.0 million (plus, in the case of Permitted Refinancing Indebtedness, any Additional Refinancing Amount);
(22) obligations or liabilities in respect of any Permitted Bond Hedge Transactions, or any Permitted Warrant Transactions;
(23) any Guarantee by the Company or a Restricted Subsidiary of the obligations of any Unrestricted Subsidiary or any Restricted Subsidiary that is not a Guarantor, so long as (A) recourse to the Company or such Restricted Subsidiary thereunder is limited solely to shares of capital stock of such Unrestricted Subsidiary, such Restricted Subsidiary that is not a Guarantor, or their Subsidiaries and to no other assets of the Company or the other Guarantors and (B) neither the Company nor any Restricted Subsidiary agrees, in connection therewith, to any limitation on the amount of Indebtedness which may be incurred by them, to the granting of any Liens on assets of the Company or any of the Restricted Subsidiaries (other than shares of stock of such Unrestricted Subsidiary, such Restricted Subsidiary that is not a Guarantor, or their Subsidiaries) or to any acquisition or disposition of any assets of the Company or the Restricted Subsidiaries (other than shares of capital stock of such Unrestricted Subsidiary, such Restricted Subsidiary that is not a Guarantor, or their Subsidiaries);
(24) any Guarantee by the Company or a Restricted Subsidiary of the obligations or Indebtedness of any Unrestricted Subsidiary, Restricted Subsidiary that is not a Guarantor, or joint venture; provided that the aggregate amount of all such Guarantees, when combined with the aggregate amount of Investments in Unrestricted Subsidiaries and joint ventures made pursuant to clause (18) of the definition of “Permitted Investments” does not exceed $250,000,000 at any time outstanding; or
(25) to the extent constituting Indebtedness, Investments permitted to be incurred under this Indenture (other than in reliance on clause (19) of the definition of “Permitted Investments”).
(c) Notwithstanding any other provision of this Section 4.09:
(1) the maximum amount of Indebtedness that may be incurred pursuant to this covenant will 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 or changes in GAAP; 4869-1723-0772 v.7
(2) any portion thereofIndebtedness of a Person existing at the time such Person becomes a Restricted Subsidiary will be deemed to be incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary;
(3) neither the accrual of interest nor the accretion of original issue discount (to the extent provided for when the Indebtedness on which such interest is paid was originally issued) shall be considered an incurrence of Indebtedness, as applicable;
(4) the payment of interest in the form of additional Indebtedness with the same terms and the payment of dividends on Disqualified Equity Interests or Preferred Stock in the form of additional shares of the same class of Disqualified Equity Interests (to the extent provided for when the Indebtedness, Disqualified Equity Interests or Preferred Stock on which such interest or dividend is paid was originally issued) shall not be considered an incurrence of Indebtedness or Liens;
(5) for purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (a) the principal amount of such Indebtedness being refinanced plus (b) the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including, without limitation, tender premiums) and other costs and expenses Incurred (including, without limitation, original issue discount, upfront fees or similar fees) incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);
Appears in 1 contract
Sources: Indenture (AMC Networks Inc.)
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, "incur") any Indebtedness if, immediately after giving effect Indebtedness; provided that subsequent to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08SEC Filing Date, the Company or any of its Restricted Subsidiaries may Incur each incur additional Indebtedness if, after giving effect thereto, the Consolidated Leverage Ratio would be a positive number that is less than 3.50 to 1.00 (the "Leverage Ratio Exception"). In addition, QCII shall not, and all shall not permit any of its Restricted Subsidiaries (other than the Company and its Restricted Subsidiaries) to, incur any Indebtedness, unless the QCII Ratio is satisfied; provided that QCII and its Restricted Subsidiaries (other than the Company and its Restricted Subsidiaries) shall be permitted to refinance any Indebtedness of QCII or any of its Restricted Subsidiaries to incur Indebtedness that would otherwise constitute Permitted Indebtedness.
(b) The provisions of Section 4.06(a) will not apply to the incurrence by the Company or any of its Restricted Subsidiaries of any of the following:following items of Indebtedness (collectively, "Permitted Indebtedness"):
(1i) Indebtedness under the Credit Agreement or otherwise; provided that the aggregate principal amount of such Indebtedness at any time outstanding pursuant to this clause (i), without duplication, does not exceed an amount equal to $2.0 billion;
(a) Indebtedness under the QwestDex Credit Agreement or other Indebtedness; provided that the aggregate principal amount of such Indebtedness at any time outstanding pursuant to this clause (ii), without duplication, does not exceed an amount equal to $750.0 million; and (b) other Indebtedness of any Directory Publishing Subsidiary constituting Non-Recourse Debt with respect to any Directory Publishing Subsidiary;
(iii) Indebtedness in respect of treasury management arrangements or other cash management services provided by lenders (or their affiliates) under the Credit Agreement or any other credit facility in aggregate principal amount at any time outstanding not to exceed $350.0 million;
(iv) Indebtedness outstanding on the Issue Date (other than Indebtedness referred to in clauses (i), (ii) and (iii) above and clause (v) below), the guarantee by the Company of the Existing 2008 Notes or any other Restricted Subsidiary required to provide a guarantee of the Existing 2008 Notes and up to $4.0 billion in aggregate principal amount of Notes;
(v) Indebtedness of the Company or any owed to a Restricted Subsidiary of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case Indebtedness of any refinancing Restricted Subsidiary of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness Company owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if to the Company or any other Restricted Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event which results in upon any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (being owed to any Person other than to the Company or any other of its Restricted Subsidiaries, the Company or such Restricted Subsidiary) , as applicable, shall be deemed, in each case, deemed to constitute an Incurrence of such have incurred Indebtedness not permitted by this clause (2)(Bv); and Indebtedness of the Company or any of its Restricted Subsidiaries owed to QCII or QCF as of the Issue Date and any other such Indebtedness owed to QCII or QCF incurred in the ordinary course of business and consistent with past practice; provided that upon any disposition of QCF by QCII or such Indebtedness being owed to any Person other than QCII, QCF or the Company or any Restricted Subsidiary of the Company, the relevant obligor shall be deemed to have incurred Indebtedness not permitted by this clause (v);
(3vi) Indebtedness under Hedging Obligations; provided that (a) such Hedging Obligations relate to payment obligations on Indebtedness otherwise permitted to be incurred by this Section 4.06, and (b) the Notes notional principal amount of such Hedging Obligations at the time incurred does not exceed the principal amount of the Indebtedness to be which such Hedging Obligations relate;
(vii) Indebtedness in respect of bid, performance or surety bonds or letters of credit issued for the account of the Company or any of its Restricted Subsidiaries in the ordinary course of business, including guarantees or obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such bid, performance or surety obligations (in each case other than for an obligation for money borrowed);
(viii) Purchase Money Indebtedness incurred by the Company or any of its Restricted Subsidiaries;
(ix) Indebtedness of the Company or any Restricted Subsidiary in an aggregate principal amount not to exceed $750.0 million so long as the net proceeds thereof do not exceed the cash consideration paid to retire unconditional purchase obligations of QCC and QCII outstanding on the Issue Date ("Outstanding UPOs"); provided that such Indebtedness has no scheduled payments of principal greater than the scheduled payments with respect to the replaced Outstanding UPOs as in effect on the Issue Date;
(4x) Permitted Subordinated Indebtedness;
(xi) Refinancing Indebtedness of the Company or any of its Restricted Subsidiaries with respect to Indebtedness incurred (a) pursuant to the Leverage Ratio Exception, (b) under clauses (iv), (viii), (ix) and (x) above or (c) during any Suspension Period; and
(xii) Indebtedness of the Company or any Restricted Subsidiary in an aggregate amount not to exceed $1.625 billion at any time outstanding. For purposes of determining compliance with this Section 4.06, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (i) through (xii) above (but excluding Indebtedness incurred pursuant to the Leverage Ratio Exception), the Company shall, in its sole discretion, classify or later reclassify such item of Indebtedness and may divide and classify such Indebtedness in more than one of the types of Indebtedness described, except that (1) Indebtedness incurred under the Credit Agreement as of the Issue Date shall be deemed to have been incurred under clause (i) above, (2) Indebtedness incurred under the QwestDex Credit Agreement as of the Issue Date shall be deemed to have been incurred under clause (ii) above, (3) Indebtedness of the type referred to in clause (iii) above outstanding as of the Issue Date;
Date shall be deemed to have been incurred under clause (5iii) above, and (4) Indebtedness issued in exchange for, or to the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other extent outstanding Indebtedness on the Issue Date (other than Indebtedness referred to in clauses (1), (2), (6), (10), (11) and (133) of this Section 4.08(d)above) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred referred to in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5iv) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant shall be deemed to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this have been incurred under clause (5);iv) above.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company will not, and nor will not it permit any of its Restricted Subsidiaries to, Incur create, incur, assume, become liable for, or guaranty, or permit any of its Property to become subject to, any Funded Indebtedness if(and in the case of a Subsidiary, immediately Current Indebtedness) other than:
(i) Funded Indebtedness represented by the Notes and the outstanding Indebtedness set forth in Schedule 4.6; (ii) Unsecured Funded Indebtedness of the Company, if after giving effect thereto and to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromany concurrent transactions, the aggregate principal amount of all outstanding secured and unsecured Funded Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will notincluding, and will but not permit any of its Restricted Subsidiaries limited to, Incur any Subsidiary the Funded Indebtedness or any Secured Indebtedness if, immediately after giving effect to represented by the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness Bonds) and the receipt secured and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness unsecured Current and Secured Funded Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) excluding Indebtedness owed to:
(A) The Company or by a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted a Wholly-Owned Subsidiary) shall be deemed, in each case, to constitute an Incurrence does not exceed 65% of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) Total Capitalization; and (13iii) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Purchase Money Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with and unsecured Current or subordinate Funded Indebtedness of a Subsidiary, if after giving effect thereto and to any concurrent transactions, (a) the conditions set forth in right Section 4.6(ii) are satisfied, and (b) the aggregate principal amount of payment outstanding Purchase Money Indebtedness of the Company and its Subsidiaries and the unsecured Current and Funded Indebtedness of the Subsidiaries, excluding Current or Funded Indebtedness owed by a Subsidiary to the Notes Company or such Subsidiary Guarantor’s Note Guaranteea Wholly-Owned Subsidiary, as applicable, be Refinanced by means does not exceed 20% of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);Consolidated Tangible Net Worth.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Total Net Debt to Adjusted Total Assets as of any date of IncurrenceRatio would exceed 0.65 to 1.00.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Senior Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Net Debt to Adjusted Total Assets as of any date of IncurrenceRatio would exceed 0.45 to 1.00.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis)1.0; provided that the amount of Indebtedness that may be Incurred by Restricted Subsidiaries that are not Subsidiary Guarantors shall not exceed the greater of $800.0 million and an amount equal to 8.0% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding .
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) the greater of $3,400.0 4,000.0 million and an amount equal to 40.0% of Adjusted Total Assets at any time outstanding, plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma Pro Forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing Refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;Refinancing;
(2) Indebtedness owed to:
(A) The the Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; note; or
(B) any other Restricted Subsidiary; Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);2)(B);
(3i) the Notes to be issued on the Issue Date, the 2025 Notes to be issued on the Issue Date, the 2030 Notes to be issued on the Issue Date, the Note Guarantees, the 2025 Note Guarantees and the 2030 Note Guarantees; and (ii) the Existing Senior Notes and related guarantees;
(4) Indebtedness outstanding as of the Issue DateDate (other than Indebtedness described in clause (1) above);
(5) the PropCo Notes and the Guarantees of the PropCo Notes;
(56) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund refund, other outstanding Indebtedness that was incurred under the provisions of paragraph (other than clauses (1a), (2b) or (c) of this covenant or clauses (3), (4), (5), (6), (9), (10), (11), (15), (18), (19) and or (1327) of this Section 4.08(d)) , in an amount not to exceed the amount so Refinanced plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; ” or a “Refinancing”); provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (56) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; , if applicable; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the earlier of (i) the Stated Maturity of the Subordinated Indebtedness to be Refinanced, or (ii) the date that is 91 days after the Stated Maturity of the Notes, and the Average Life of such new Indebtedness is at least equal to the earlier of (1) the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and , or (2) 91 days more than the Average Life of the Notes; provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (56);
(7) obligations (contingent or otherwise) existing or arising under any Hedging Obligations or Swap Contracts (including Secured Hedge Agreements) entered into for the purpose of mitigating risks associated with fluctuations in interest rates (including both fixed to floating and floating to fixed contracts), foreign exchange rates or commodity price fluctuations in a non-speculative manner;
(8) Indebtedness under Secured Cash Management Agreements and in respect of netting services, the Overdraft Line and otherwise in connection with deposit accounts, commercial credit cards, stored value cards, purchasing cards and treasury management services, including any obligations pursuant to Cash Management Agreements, and other netting services, overdraft protections, automated clearing-house arrangements, employee credit card programs, controlled disbursement, ACH transactions, return items, interstate depository network service, Society for Worldwide Interbank Financial Telecommunication transfers, cash pooling and operational foreign exchange management, and in each case, similar arrangements and otherwise in connection with cash management, including cash management arrangements among the Company and its Subsidiaries;
(9) (A) Finance Leases, synthetic lease obligations, purchase money obligations or mortgage financings Incurred after the Issue Date and (B) Indebtedness secured by purchase money Liens, in an aggregate outstanding principal amount for clauses (A) and (B) on a combined basis not to exceed the greater of $200.0 million and an amount equal to 2.0% of Adjusted Total Assets at any time outstanding; provided, however, that, subject to clause (g), any Refinancing Incurred under clause (6) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (9) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (9);
(10) Indebtedness of the Company, to the extent the net proceeds therefrom are promptly:
(A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change of Control; or
(B) deposited to defease or discharge the Notes as described in Articles 8 and 11 hereof;
(11) Indebtedness incurred in connection with any Sale and Leaseback Transaction;
(12) customer deposits and advance payments received from customers in the ordinary course of business;
(13) any Guarantee issued by the Company pursuant to the matters described in any indemnity agreements entered into for the benefit of a title company that has been engaged by the Company or any of its Restricted Subsidiaries;
(14) Guarantees by the Company or any Restricted Subsidiary of any Indebtedness of the Company or any Restricted Subsidiary; provided that such Indebtedness was permitted to be Incurred pursuant to this covenant other than under this clause (14); provided further that any such Guarantees by the Company or any Subsidiary Guarantor of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor is subordinated in right of payment to the obligations of the Company and the Subsidiary Guarantors under the Notes;
(15) Guarantees issued by the Company or any of its Restricted Subsidiaries of any Indebtedness of Joint Ventures or Unrestricted Subsidiaries in an amount not to exceed the greater of $200.0 million and 2.0% of Adjusted Total Assets at any time outstanding, if both before and after giving effect to the incurrence of each such Guarantee, no Default or Event of Default has occurred or is continuing, provided, however, that, subject to clause (g), any Refinancing Incurred under clause (6) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (15) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (15);
(16) Indebtedness of the Company or any of its Restricted Subsidiaries supported by a letter of credit issued under any Credit Facilities in an aggregate principal amount not to exceed the stated amount of such letter of credit (but which stated amount may include the amount of any anticipated premiums, expenses (including upfront fees and original issue discount) and any accretion in the principal amount thereof);
(17) contractual indemnity obligations entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of ownership or operation of their respective properties;
(18) Indebtedness (A) of a Person that becomes a Restricted Subsidiary after the Issue Date, that existed at the time such Person became a Restricted Subsidiary and was not created (but may have been amended) in anticipation or contemplation thereof, (B) Incurred to provide all or any portion of the funds utilized to acquire, or to consummate the transaction or series of related transactions in connection with or in contemplation of any acquisition of a Person that becomes a Restricted Subsidiary, (c) assumed in connection with an asset acquisition by the Company or a Restricted Subsidiary and (D) Incurred in connection with any Investment in a third party permitted under this Indenture, in each case under this clause (18), as long as immediately after giving effect thereto, either (i) the Interest Coverage Ratio on a Pro Forma Basis would be at least 2.0 to 1.0 or (ii) in the case of subclause (A) only, the Interest Coverage Ratio on a Pro Forma Basis would be greater than or equal to the actual Interest Coverage Ratio immediately prior to such acquisition, incurrence or assumption.
(19) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, together with any other Indebtedness incurred by such Restricted Subsidiaries pursuant to this covenant, in an amount not to exceed the greater of $800.0 million and an amount equal to 8.0% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding; provided, however, that, subject to clause (g), any Refinancing Incurred under clause (6) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (19) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (19);
Appears in 1 contract
Sources: Indenture (Vici Properties Inc.)
Incurrence of Indebtedness. (a1) The Company will Operating Partnership shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, Incur any Indebtedness (including Acquired Indebtedness) if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company Operating Partnership and its the Restricted Subsidiaries on a consolidated basis would be greater than 6560% of Adjusted Total Assets as of any date of Incurrence.
(b2) The Company will Operating Partnership shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, Incur any Subsidiary Indebtedness or any Secured Indebtedness (in each case, including Acquired Indebtedness) if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company Operating Partnership and its the Restricted Subsidiaries on a consolidated basis would be greater than 4540% of Adjusted Total Assets as of any date of Incurrence.
(c3) The Company will Operating Partnership shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, Incur any Indebtedness (including Acquired Indebtedness) if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company Operating Partnership and its the Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis)1.0.
(d4) Notwithstanding clauses (a1), (b2) and (c3) of this Section 4.084.09, the Company or any of its Operating Partnership and the Restricted Subsidiaries may Incur each and all of the following:following (“Permitted Debt”):
(1A) (i) Indebtedness of the Company Operating Partnership or any of the Subsidiary Guarantors outstanding under the Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing1.5 billion;
(2B) Indebtedness owed to:
(Ai) The Company the Operating Partnership or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(Bii) any other Restricted Subsidiary; provided that if the Company Operating Partnership, the Co-Issuer or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the CompanyOperating Partnership or the Co-Issuer, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law)Guarantor; and provided further that any event 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 Operating Partnership or any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(BB)(ii);
(3C) Indebtedness represented by the Notes to be and the Note Guarantees issued on the Issue Date;
(4D) Indebtedness outstanding as of the Issue DateDate (other than Indebtedness outstanding on the Issue Date under the Existing Credit Facility, which initially shall be deemed to have been Incurred on the Issue Date in reliance on the exception provided by clause (4)(A) of this Section 4.09;
(5E) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”) (other than Indebtedness Incurred under clauses (A), (B), (F), (H), (J), (K), (L) and (M) of this Section 4.09(4)) and any refinancings thereof, in an amount not to exceed the amount so RefinancedRefinanced (plus premiums, accrued interest, fees and expenses); provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will shall be permitted under this clause (5E) only if:
(Ai) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes or the applicable Note Guarantee, as the case may be, at least to the extent that the Indebtedness to be Refinanced is subordinated to the NotesNotes or such Note Guarantee, as the case may be; and
(Bii) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the earlier of the Stated Maturity of the Subordinated Indebtedness to be RefinancedRefinanced or the Stated Maturity of the Notes, and the Average Life of such new Indebtedness is at least equal to the lesser of the remaining Average Life of the Subordinated Indebtedness to be RefinancedRefinanced or the remaining Average Life of the Notes; and provided further, further that in no event may Indebtedness of the Company any Issuer or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced pursuant to this clause (E) by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5)Guarantor;
Appears in 1 contract
Sources: Indenture (QualityTech, LP)
Incurrence of Indebtedness. (a) 6.1 The Company Borrower will not, and will not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, or permit to subsist (collectively, “incur”) any Indebtedness.
6.2 Paragraph 6.1 will not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):
(1) any Indebtedness ifoutstanding on the Utilization Date arising under (a) the Senior Secured Notes Indenture and/or the Note Purchase Agreement or (b) this Agreement;
(2) the Existing Indebtedness, immediately after giving effect provided that it is refinanced (and any security and guarantee is released) substantially concurrently with drawdown under this Agreement;
(3) any Indebtedness between or among the Borrower and any of its Subsidiaries (including, without limitation, any intra-group loans to the Incurrence Guarantors from the Borrower), provided that any Indebtedness having the Borrower or a Guarantor as debtor and a Subsidiary that is not a Guarantor or the Borrower as creditor shall, pursuant to and to the extent provided in the Intercreditor Agreement or any Additional Intercreditor Agreement, be subordinated to the Finance Documents and any Additional Intercreditor Agreement and the Guarantees (as applicable) and may only be serviced so long as no Event of Default has occurred and is continuing;
(4) obligations under any derivative transactions related to the Borrower and its Subsidiaries’ hedging made on a non-speculative basis;
(5) the incurrence of Indebtedness, or any recourse liability owing to any financial institution, by the Borrower or any of its Subsidiaries in respect of completion, bid, appeal, surety or performance bonds, advance payment guarantees and other guarantees or letters of credit issued in the ordinary course of business of the Borrower or relevant Subsidiary, provided that any incurrence of Indebtedness by a Guarantor pursuant to this sub-paragraph (5) shall only be in respect of the relevant Vessel of such Guarantor;
(6) any Attributable Indebtedness and and/or secured Indebtedness incurred by a Subsidiary (other than a Guarantor) in connection with such Subsidiary’s acquisition of, or investment in, a vessel (or entity owning such vessel or participation in a joint venture owning a vessel) from an entity not being the receipt and application Borrower or a Subsidiary (such Indebtedness, a “New Vessel Financing”), provided that:
(i) the ratio of the proceeds therefrom, the aggregate principal amount of all outstanding the New Vessel Financing relative to the Fair Market Value of such acquisition or investment at the time of obtaining such New Vessel Financing does not exceed 70%;
(ii) such Indebtedness may be guaranteed by the Borrower; and
(iii) such Indebtedness may only be secured by a mortgage over the acquired vessel, a pledge or charge of the shares of the Subsidiary owning such vessel and other security over assets, rights, bank accounts and contracts of the Subsidiary owning such vessel comparable in nature to the Collateral (but, for the avoidance of doubt, no such Indebtedness may be secured on any Collateral).
(7) any Indebtedness under any pension and Tax liabilities incurred in the ordinary course of business or the incurrence by the Borrower or any of its Subsidiaries of Indebtedness in respect of in respect of workers’ compensation claims, unemployment insurance, health, disability and other employee benefits or property, casualty or liability insurance, self-insurance obligations or bankers’ acceptances;
(8) senior unsecured Indebtedness of the Company Borrower or any of its Subsidiaries (other than a Guarantor) maturing after the final maturity of the Notes and not otherwise permitted by this covenant which in the aggregate shall not exceed $100.0 million for the Borrower and its Restricted Subsidiaries as a whole at any time;
(9) senior unsecured Indebtedness of the Borrower or any of its Subsidiaries (other than a Guarantor) not otherwise permitted by this covenant which in aggregate shall not exceed $5.0 million for the Borrower and its Subsidiaries as a whole at any time;
(10) Permitted Refinancing Indebtedness in respect of Indebtedness (other than intercompany Indebtedness) of the Borrower or any of its Subsidiaries that was permitted by the Senior Secured Notes Indenture to be incurred under (1) or (6) of this paragraph;
(a) the guarantee (whether or not secured) by the Borrower or any Subsidiary (other than a Guarantor) of Indebtedness of the Borrower or any Subsidiary that was permitted to be incurred by another provision of this covenant; provided that if the Indebtedness being guaranteed is contractually subordinated to the notes or a Guarantee, then the guarantee shall be contractually subordinated to the same extent as the Indebtedness guaranteed and (b) guarantees by the Borrower or any Guarantor in respect of Permitted Refinancing Indebtedness incurred under sub-paragraph (10) of this paragraph in respect of any Senior Secured Notes or this Agreement;
(12) the incurrence by the Borrower or any of its 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 30 business days;
(13) the incurrence by the Borrower or any of its Subsidiaries of Indebtedness consisting of guarantees, earn- outs, indemnities, contribution, obligations in respect of purchase price adjustments or, in each case, similar obligations, in connection with the disposition or acquisition of assets, including, without limitation, shares of Capital Stock;
(14) the incurrence by the Borrower or any of its Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit so long each such obligation is satisfied within 30 days of the incurrence thereof;
(15) the incurrence by the Borrower or any of its Subsidiaries of Indebtedness in the form of customer deposits and advance payments received in the ordinary course of a Permitted Business from customers for services purchased in the ordinary course of a Permitted Business;
(16) Indebtedness of the Borrower or any of its Subsidiaries arising from customary cash management services or in connection with any automated clearinghouse transfer of funds in the ordinary course of a Permitted Business; and
(17) Indebtedness of a Person acquired by the Borrower or a Subsidiary or merged, consolidated, amalgamated or liquidated with or into a Subsidiary or the Borrower, provided that such Indebtedness was incurred or issued, as applicable, prior to such transaction and not in connection with or in contemplation of such transaction; provided further that either (a) at the time of entry into definitive documentation with respect to such transaction, the ratio of the principal amount of the Total Debt of such Person to the Fair Market Value of such Person does not exceed 80% or (b) the ratio of the principal amount of the Total Debt relative to the Adjusted EBITDA of the Borrower or the Person formed by or surviving such transaction on a consolidated pro forma basis would will be no greater than 65% the ratio of Adjusted Total Assets the Borrower was prior to such transaction.
6.3 For purposes of determining compliance with this paragraph 6, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described above, the Borrower, in its sole discretion, may divide and/or classify such item of Indebtedness (or any portion thereof) on the date of its incurrence, or later redivide and/or reclassify, all or a portion of such item of Indebtedness in any manner that complies with this paragraph 6.
6.4 The accrual of interest, the accrual of 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, and the payment of dividends on Disqualified Stock or preferred stock in the form of additional shares of the same class of Disqualified Stock or preferred stock, as the case may be, will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred stock for purposes of this paragraph 6.
6.5 The amount of any Indebtedness outstanding as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the followingbe:
(1) Indebtedness the accreted value of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof)such Indebtedness, in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection issued with such refinancingoriginal issue discount;
(2) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(3) in respect of Indebtedness owed toof another Person secured by a Lien on the assets of the specified Person, the lesser of:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer Fair Market Value of such Indebtedness (other than to assets at the Company or any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence date of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notesdetermination; and
(B) the amount of the Indebtedness of the other Person that is secured by such new Indebtednessassets.
6.6 For purposes of determining compliance with this paragraph 6, determined (i) Indebtedness of a Person acquired by or merged into the Borrower or its Subsidiaries or that otherwise becomes a Subsidiary of the Borrower shall be deemed to have been incurred by the Borrower or its Subsidiaries, as the case may be, at the time an acquired Person becomes such a Subsidiary of the Borrower (or is merged into the Borrower or such a Subsidiary) or at the time of the acquisition of assets, as the case may be, (ii) the maximum amount of Indebtedness that the Borrower and its Subsidiaries may incur pursuant to this paragraph 6 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 and (iii) the outstanding principal amount of any particular Indebtedness shall be counted only once and any other obligations arising under any guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness permitted to be incurred under this paragraph 6 shall not be double counted. In addition, in connection with the incurrence of any Indebtedness pursuant to paragraph 6.1, the Borrower may elect, pursuant to an Officer’s Certificate delivered to the Facility Agent, to treat all or any portion of the commitment under any Indebtedness which is to be incurred, as being incurred as of the calculation date and any subsequent incurrence of Incurrence Indebtedness under such commitment that was so treated shall not be deemed, for purposes of this calculation, to be an incurrence of additional Indebtedness.
6.7 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 different currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred; provided, however, that (i) if such Indebtedness denominated in non-dollar currency is subject to a Currency Exchange Protection Agreement with respect to U.S. dollars, the amount of such new IndebtednessIndebtedness expressed in U.S. dollars will be calculated so as to take account of the effects of such Currency Exchange Protection Agreement; and (ii) the dollar-equivalent of the principal amount of any such Indebtedness outstanding on the Utilization Date shall be calculated based on the relevant currency exchange rate in effect on the Utilization Date. The principal amount of any refinancing Indebtedness incurred in the same currency as the Indebtedness being refinanced will be the dollar-equivalent of the Indebtedness refinanced determined on the date such Indebtedness was originally incurred, does not mature prior except that to the Stated Maturity extent that:
(1) such dollar-equivalent was determined based on a Currency Exchange Protection Agreement, in which case the Permitted Refinancing Indebtedness will be determined in accordance with the preceding sentence; and
(2) the principal amount of the Subordinated refinancing Indebtedness to be Refinancedexceeds the principal amount of the Indebtedness being refinanced, and in which case the Average Life dollar-equivalent of such new excess will be determined on the date such refinancing Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means being incurred. The principal amount of any Indebtedness of any Restricted Subsidiary incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Permitted Refinancing Indebtedness is denominated that is not in effect on the date of such refinancing.
6.8 For the avoidance of doubt, no other Indebtedness may be secured on the Collateral on a Subsidiary Guarantor pursuant to this clause (5);pari passu basis.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Parent and the Company will not, and will not permit any of its their Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to (collectively, “incur”) any Indebtedness ifIndebtedness, immediately after giving effect to except for Permitted Indebtedness; provided, however, that the Incurrence of such Indebtedness Parent and the receipt and Company may incur Indebtedness (including Acquired Indebtedness) if the Consolidated Leverage Ratio for the Parent’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred would have been less than 3.5 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the aggregate principal amount additional Indebtedness had been incurred at the beginning of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrencesuch four-quarter period.
(b) The Company will not, and Section 4.17(a) will not permit prohibit the incurrence of any of its Restricted Subsidiaries tothe following items of Indebtedness (collectively, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:“Permitted Indebtedness”):
(1) Indebtedness of the incurrence by the Parent, the Company or and any of the Subsidiary Guarantors outstanding their Restricted Subsidiaries of Indebtedness and letters of credit under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith an aggregate principal amount at any one time outstanding under this clause (1) (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face maximum potential liability of the Parent, the Company and any of their Restricted Subsidiaries thereunder) not to exceed $100.0 million;
(2) the incurrence by the Parent, the Company and any of their Restricted Subsidiaries of Indebtedness outstanding on the Issue Date, including the Indebtedness incurred pursuant to that certain credit agreement dated as of March 28, 2008 between Sumitomo Trust Bank and Oclaro Japan, Inc. in an aggregate amount thereof)not to exceed 1,500.0 million Japanese Yen at any one time;
(3) the incurrence by the Parent, the Company or any of their Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement of property, plant, equipment or assets used in the business of the Parent, the Company or any of their Restricted Subsidiaries, in an aggregate principal amount at amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness incurred pursuant to this clause (y3), not to exceed $5.0 million at any time outstanding; provided that, the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing principal amount of any Indebtedness permitted under this clause (13) or any portion thereof, did not at the aggregate amount time of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if incurrence exceed the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case Fair Market Value of the Companyacquired, installed or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary constructed asset or any subsequent transfer of such Indebtedness (other than to the Company or any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Dateimprovement so financed;
(4) the incurrence by the Parent, the Company or any of their Restricted Subsidiaries of Permitted Refinancing Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extendrenew, refund, refinance, renew, replace, defease, defease or discharge or refund other outstanding any Indebtedness (other than clauses intercompany Indebtedness) that was permitted by this Indenture to be incurred;
(1)5) the incurrence by the Parent, (2), the Company or any of their Restricted Subsidiaries of endorsement of instruments or other payment items for deposit;
(6)) the incurrence by the Parent, the Company or any of their Restricted Subsidiaries of Indebtedness consisting of (10)i) unsecured guarantees incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds, bid bonds, appeal bonds, completion guarantee and similar obligations; (11ii) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred unsecured guarantees arising with respect to customary indemnification obligations to purchasers in connection with such refinancing certain permitted dispositions; and (iii) unsecured guarantees with respect to Indebtedness of the Parent and any such actionof its Subsidiaries, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the person that is obligated under such guaranty could have incurred such underlying Indebtedness;
(7) the incurrence by the Parent, the Company or any of their Restricted Subsidiaries of Indebtedness incurred by the Parent or any of its Restricted Subsidiaries in the ordinary course of business under performance, surety, statutory, and appeal bonds;
(8) the incurrence by the Parent, the Company or any of their Restricted Subsidiaries of Indebtedness owed to any person providing property, casualty, liability, or other insurance to the Parent, the Company or any of their Restricted Subsidiaries, so long as the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be Refinanced incurred only to defer the cost of, such insurance for the year in which such Indebtedness is incurred and such Indebtedness is outstanding only during such year;
(9) the incurrence by the Parent, the Company or any of their Restricted Subsidiaries of Hedging Obligations not incurred for speculative purposes;
(10) the incurrence by the Parent, the Company or any of their Restricted Subsidiaries of intercompany Indebtedness between or among the Parent, the Company or and any of their Restricted Subsidiaries; provided however, that:
(a) if the Parent, the Company or any Restricted Subsidiary is the obligor on such Indebtedness and the payee is not the Parent, the Company or a Restricted Subsidiary, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes; and
(Bb) any (i) subsequent issuance or transfer of Equity Interests that results in any such new IndebtednessIndebtedness being held by a Person other than the Parent, determined as the Company or Restricted Subsidiary of the date Parent, or (ii) sale or other transfer of Incurrence of any such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanceda Person that is not either the Parent, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Restricted Subsidiary Guarantor that ranks equally with or subordinate of the Parent, will be deemed, in right each case, to constitute an incurrence of payment to such Indebtedness by the Notes Parent, the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (10);
(11) the guarantee by the Parent, the Company or any of the Restricted Subsidiaries of Indebtedness of the Parent, the Company or a Restricted Subsidiary Guarantor’s Note Guaranteeof the Parent that was permitted to be incurred by another provision of this covenant; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the Restricted Subsidiary shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(12) the Company’s or the Guarantors’ incurrence of Indebtedness represented by the Notes and the related Note Guarantees, as applicable, to be Refinanced issued on the Issue Date;
(13) unsecured Indebtedness owing to sellers of assets or stock to the Parent, the Company or any of their Restricted Subsidiaries that is incurred by means the Parent, the Company or such Restricted Subsidiary in connection with the consummation of one or more acquisitions so long as the aggregate principal amount for all such unsecured Indebtedness does not exceed $5.0 million (or its equivalent in any other currency) at any one time outstanding;
(14) the incurrence of Indebtedness that may be deemed to arise as a result of agreements of the Parent, the Company or any Restricted Subsidiary providing for indemnification, adjustment of purchase price or any similar obligations, in each case, incurred in connection with the acquisition or disposition of any business, assets or Equity Interests of any Subsidiary; provided that, in the case of a disposition, the aggregate maximum liability associated with such provisions may not exceed the gross proceeds (including non-cash proceeds) of such disposition (measured at the time received and without giving effect to any subsequent changes in value);
(15) the incurrence by the Parent, the Company or any Restricted Subsidiary of Indebtedness incurred in respect of credit cards, credit card processing services, debit cards, stored value cards, purchase cards (including so-called “procurement cards” or “P-cards”), or any cash management arrangement or related services, in each case, incurred in the ordinary course of business;
(16) the incurrence by the Parent, the Company or any Restricted Subsidiary of Acquired Indebtedness not to exceed $5.0 million or its equivalent in any other currency outstanding at any one time;
(17) the incurrence by the Parent, the Company or any Restricted Subsidiary of Indebtedness representing deferred compensation to employees of the Parent or any Restricted Subsidiary incurred in the ordinary course of business;
(18) the incurrence by the Parent, the Company or any of their Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within five business days; and
(19) other unsecured Indebtedness of the Parent, the Company or any of their Restricted Subsidiaries not to exceed in the aggregate $9.0 million (or its equivalent in any other currency) at any time outstanding.
(c) For purposes of determining compliance with this Section 4.17, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (1) through (19) above, or is entitled to be incurred pursuant to Section 4.17(a), the Parent will be permitted to classify such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.17. Indebtedness under Credit Facilities outstanding on the date on which Notes are first issued and authenticated under this 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 Indebtedness. 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 4.17. Notwithstanding any other provision of this Section 4.17, the maximum amount of Indebtedness that the Parent or any Restricted Subsidiary may incur pursuant to this Section 4.17 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 Restricted Subsidiary date will be:
(1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(2) with respect to contingent obligations, the maximum liability upon the occurrences of the contingency giving rise to the obligation;
(3) with respect to Hedging Obligations, the net amount payable, if any, by such Persons of such Hedging Obligations terminated at that is not time due to default by such Person;
(4) in respect of Indebtedness of another Person secured by a Subsidiary Guarantor pursuant to this clause Lien on the assets of the specified Person, the lesser of:
(a) the Fair Market Value of such assets at the date of determination
(b) the amount of the Indebtedness of the other Person; and
(5);) the principal amount of the Indebtedness, in the case of any other Indebtedness.
Appears in 1 contract
Sources: Indenture (Oclaro, Inc.)
Incurrence of Indebtedness. (a1) The Company will Operating Partnership shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, Incur any Indebtedness (including Acquired Indebtedness) if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company Operating Partnership and its the Restricted Subsidiaries on a consolidated basis would be greater than 6560% of Adjusted Total Assets as of any date of Incurrence.
(b2) The Company will Operating Partnership shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, Incur any Subsidiary Indebtedness or any Secured Indebtedness (in each case, including Acquired Indebtedness) if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company Operating Partnership and its the Restricted Subsidiaries on a consolidated basis would be greater than 4540% of Adjusted Total Assets as of any date of Incurrence.
(c3) The Company will Operating Partnership shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, Incur any Indebtedness (including Acquired Indebtedness) if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company Operating Partnership and its the Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis)1.0.
(d4) Notwithstanding clauses (a1), (b2) and (c3) of this Section 4.084.09, the Company or any of its Operating Partnership and the Restricted Subsidiaries may Incur each and all of the following:following (“Permitted Debt”):
(1A) (i) Indebtedness of the Company Operating Partnership or any of the Subsidiary Guarantors outstanding under the Credit Facilities (other than the Existing Secured Credit Facility) and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed $600 million, and (ii) Indebtedness of the sum Operating Partnership or any Restricted Subsidiary under the Existing Secured Credit Facility and the issuance or creation of letters of credit and banker’s acceptances thereunder or in connection therewith (1) (x) $3,400.0 million plus (y) with letters of credit and banker’s acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount of at any one time outstanding Incremental Term Loans (provided that after giving pro forma effect not to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancingexceed $200 million;
(2B) Indebtedness owed to:
(Ai) The Company the Operating Partnership or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(Bii) any other Restricted Subsidiary; provided that if the Company Operating Partnership, the Co-Issuer or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the CompanyOperating Partnership or the Co-Issuer, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law)Guarantor; and provided further that any event 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 Operating Partnership or any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(BB)(ii);
(3C) Indebtedness represented by the Notes to be and the Note Guarantees issued on the Issue DateDate and the related Exchange Notes and related Exchange Note Guarantees issued in exchange for the Notes and the Note Guarantees pursuant to the Registration Rights Agreement;
(4D) Indebtedness outstanding as of the Issue DateDate (other than Indebtedness outstanding on the Issue Date under (x) the revolving credit facility that is part of the Existing Unsecured Credit Facility, which initially shall be deemed to have been Incurred on the Issue Date in reliance on the exception provided by clause (4)(A)(i) of this Section 4.09 and (y) under the Existing Secured Credit Facility, which initially shall be deemed to have been Incurred on the Issue Date in reliance on the exception provided by clause (4)(A)(ii) of this Section 4.09;
(5E) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”) (other than Indebtedness Incurred under clauses (A), (B), (F), (J), (K), (L) and (M) of this Section 4.09(4)) and any refinancings thereof, in an amount not to exceed the amount so RefinancedRefinanced (plus premiums, accrued interest, fees and expenses); provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will shall be permitted under this clause (5E) only if:
(Ai) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes or the applicable Note Guarantee, as the case may be, at least to the extent that the Indebtedness to be Refinanced is subordinated to the NotesNotes or such Note Guarantee, as the case may be; and
(Bii) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the earlier of the Stated Maturity of the Subordinated Indebtedness to be RefinancedRefinanced or the Stated Maturity of the Notes, and the Average Life of such new Indebtedness is at least equal to the lesser of the remaining Average Life of the Subordinated Indebtedness to be RefinancedRefinanced or the remaining Average Life of the Notes; and provided further, further that in no event may Indebtedness of the Company any Issuer or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced pursuant to this clause (E) by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor Guarantor;
(F) Indebtedness:
(i) constituting reimbursement obligations with respect to letters of credit and Indebtedness, in each case in respect of workers’ compensation claims, unemployment or other insurance or self-insurance obligations, performance or surety bonds or completion guarantees (not for borrowed money) Incurred in the ordinary course of business by the Operating Partnership and its Restricted Subsidiaries;
(ii) arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within 30 days of its Incurrence;
(iii) in respect of netting services, automated clearinghouse arrangements, overdraft protections, employee credit card programs and other cash management and similar arrangements Incurred in the ordinary course of business;
(iv) under Hedging Obligations Incurred in the ordinary course of business; and
(v) arising from agreements providing for indemnification, adjustment of purchase price or similar obligations Incurred in connection with the disposition of any business, assets or Restricted Subsidiary, other than Guarantees of Indebtedness Incurred by any other Person for the purpose of acquiring or financing the acquisition of any such business, assets or Restricted Subsidiary;
(G) Attributable Debt, Capitalized Lease Obligations, synthetic lease obligations, mortgage financings or purchase money obligations Incurred after the Issue Date in an aggregate principal amount at any one time outstanding, including Indebtedness Incurred to Refinance Indebtedness Incurred pursuant to this clause (5G), not to exceed the greater of (i) $150.0 million and (ii) an amount equal to 7.5% of Adjusted Total Assets as of any date of Incurrence;
(H) Indebtedness of any Issuer, to the extent the net proceeds from such Indebtedness are promptly:
(i) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change of Control;
(ii) used to redeem all the Notes pursuant to Section 3.07 hereof; and
(iii) deposited to defease the Notes pursuant to Article 8 hereof or discharge the Notes pursuant to Article 11 hereof;
(I) Guarantees (other than Guarantees permitted under clause (4)(C) of this Section 4.09 of Indebtedness of the Issuers or any Restricted Subsidiary by any other Restricted Subsidiary; provided that such Indebtedness was permitted to be Incurred pursuant to another clause of this Section 4.09; and provided, further, that, in the case of any such Guarantee by a Subsidiary Guarantor of Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor, such Guarantee shall be expressly subordinated in right of payment to the obligations of such Subsidiary Guarantor under its Note Guarantee;
(J) Indebtedness Incurred by a Receivables Entity in a Qualified Receivables Transaction that is non-recourse to the REIT, the Issuers or any other Restricted Subsidiary (except for Standard Securitization Undertakings);
(K) Indebtedness of Foreign Subsidiaries in an aggregate principal amount at any one time outstanding not to exceed the greater of (i) $75.0 million and (ii) an amount equal to 5.0% of Adjusted Total Assets as of any date of Incurrence;
(L) Indebtedness of the Operating Partnership or any Restricted Subsidiary consisting of financing of insurance premiums incurred in the ordinary course of business;
(M) customer deposits and advance payments received from customers in the ordinary course of business;
(N) the Incurrence of Acquired Indebtedness by the Operating Partnership or any Restricted Subsidiary in connection with the acquisition of any Person (whether by merger, consolidation, acquisition of Capital Stock or otherwise), Asset Acquisition or other asset acquisition by the Operating Partnership or any of its Restricted Subsidiaries; provided that any Person that is so acquired (including pursuant to an Asset Acquisition) is primarily engaged in a Permitted Business and becomes, upon such acquisition, a Restricted Subsidiary or is merged into the Operating Partnership or a Restricted Subsidiary and any assets so acquired (including pursuant to an Asset Acquisition) are used or useful in a Permitted Business; and provided, further, that, immediately after giving effect to such acquisition and the Incurrence of such Acquired Indebtedness, no Default of Event of Default shall have occurred and be continuing (or would result therefrom) and either (1) the Interest Coverage Ratio would be greater than immediately prior to such transactions, or (2) the Operating Partnership would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Interest Coverage Ratio test set forth in clause (3) above of this Section 4.09;
(O) Indebtedness with respect of (i) taxes, assessments, governmental charges or levies and (ii) claims for labor, materials and supplies Incurred in the ordinary course of business by the Operating Partnership or any of its Restricted Subsidiaries; and
(P) additional Indebtedness, Incurred after the Issue Date, of the Operating Partnership and the Restricted Subsidiaries in an aggregate principal amount at any one time outstanding, including all Indebtedness Incurred to Refinance Indebtedness Incurred pursuant to this clause (P), not to exceed the greater of (i) $150.0 million and (ii) an amount equal to 7.5% of Adjusted Total Assets as of any date of Incurrence.
(5) For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Indebtedness where the Indebtedness Incurred is denominated in a different currency, the amount of such Indebtedness shall be the U.S. Dollar Equivalent determined on the date of the Incurrence of such Indebtedness; provided, however, that if any such Indebtedness denominated in a different currency is subject to a Currency Agreement with respect to U.S. dollars covering all principal, premium, if any, and interest payable on such Indebtedness, the amount of such Indebtedness expressed in U.S. dollars shall be as provided in such Currency Agreement.
(6) For purposes of determining any particular amount of Indebtedness under this Section 4.09, Guarantees, Liens or obligations with respect to letters of credit supporting Indebtedness otherwise included in the determination of such particular amount shall not be included.
(7) For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described in clauses (1) through (4) of this Section 4.09, the Operating Partnership, in its sole discretion, may classify such item of Indebtedness and only be required to include the amount and type of such Indebtedness in one of such clauses; provided that the Operating Partnership may divide and classify an item of Indebtedness in one or more of the types of Indebtedness and may later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.09. Notwithstanding the foregoing, Indebtedness under the revolving credit facility that is part of the Existing Unsecured Credit Facility outstanding on the Issue Date shall initially be deemed to have been Incurred on such date in reliance on the exception provided by clause (4)(A)(i) of this Section 4.09, and Indebtedness under the Existing Secured Credit Facility outstanding on the Issue Date shall initially be deemed to have been Incurred on such date in reliance on the exception provided by clause (4)(A)(ii) of this Section 4.09.
(8) The amount of any Indebtedness of any Person outstanding as of any date shall be:
(A) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(B) the principal amount of the Indebtedness, in the case of any other Indebtedness;
(C) in the case where the Indebtedness of a Person arises by reason of such Person having Guaranteed Indebtedness of another Person and the maximum amount payable under such Guarantee is limited to an amount less than the entire amount of the Indebtedness so Guaranteed, then the amount of the Indebtedness represented by such Guarantee shall be limited to the maximum amount payable under such Guarantee; and
(D) 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: Indenture (QTS Realty Trust, Inc.)
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness if(including Acquired Debt), immediately after giving effect to the Incurrence of such Indebtedness and the receipt Company shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any Disqualified Stock; provided, however, that the Company and its Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 2.00 to 1.00, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period and any other Indebtedness repaid or Disqualified Stock that ceased to be outstanding since the beginning of such four-quarter period had been repaid or ceased to be outstanding at the beginning of such four-quarter period.
(b) Paragraph (a) of this Section 4.09 will not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):
(i) the incurrence of additional Indebtedness and letters of credit under one or more Credit Facilities and Guarantees thereof; provided that the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% incurred pursuant to this clause (i) does not exceed $500.0 million at the time of Adjusted Total Assets as of any date of Incurrence.incurrence thereof;
(bii) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of incurrence by the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.the Existing Indebtedness;
(ciii) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of incurrence by the Company and its Restricted Subsidiaries any Subsidiary Guarantor of Indebtedness represented by the Notes and the Subsidiary Guarantees to be issued on a consolidated basis would the Issue Date (and the related Exchange Notes and Guarantees to be less than 2.0 issued in exchange for the Notes and the Subsidiary Guarantees pursuant to 1.0 (calculated the Registration Rights Agreement) and contribution, indemnification and reimbursement obligations owed by the Company or any Subsidiary Guarantor to any of the other of them in respect of amounts paid or payable on a Pro Forma Basis).such Notes or Guarantees;
(div) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the incurrence by the Company or any of its Restricted Subsidiaries may Incur of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each and case incurred for the purpose of financing all or any part of the following:purchase price or cost of construction or improvement of property, plant or equipment used in the Company’s business or the business of such Restricted Subsidiary, in an aggregate principal amount, including all Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $30.0 million at any time outstanding;
(1v) Indebtedness of the incurrence by the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Permitted Refinancing Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extendrefund, refinance, renew, replace, defease, discharge refinance or refund other outstanding replace Indebtedness (other than clauses intercompany Indebtedness) that was incurred under clause (1), (2), (6), (10), (11) and (13a) of this Section 4.08(d4.09 or clauses (ii) or (iii) of this Section 4.09(b);
(vi) plus the aggregate amount incurrence by the Company or any of feesits Restricted Subsidiaries of intercompany Indebtedness owed to the Company or any of the Restricted Subsidiaries; provided, underwriting discountshowever, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only ifthat:
(A) if the Company is the obligor on such new Indebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes;
(B) if a Subsidiary Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of such Subsidiary Guarantor’s Subsidiary Guarantee; and
(1) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary and (2) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi);
(vii) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations and other obligations with respect to derivative transactions incurred to hedge bona fide business risks and not for speculative purposes;
(viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness that was permitted to be incurred by another provision of this covenant; provided that, if the Indebtedness being guaranteed is subordinated to the Notes, such Guarantee is subordinated to the Notes to the same extent as the Indebtedness being guaranteed;
(ix) the incurrence by the Company’s Unrestricted Subsidiaries of Non-recourse Debt; provided, however, that if any such Indebtedness ceases to be Non-recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to be an incurrence of Indebtedness by a Subsidiary of the Company that was not permitted by this clause (ix);
(x) the incurrence by the Company or any of its Restricted Subsidiaries of any Indebtedness under Seller Notes, not to exceed at the time of incurrence thereof the greater of (x) $50.0 million and (y) 5% of Consolidated Total Assets, including all Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (x);
(xi) Indebtedness incurred in respect of workers’ compensation claims and self-insurance obligations, and, for the avoidance of doubt, indemnity, bid, performance, warranty, release, appeal, surety and similar bonds, letters of credit for operating purposes and completion guarantees provided or incurred (including Guarantees thereof) by the Company or any Restricted Subsidiary in the ordinary course of business;
(xii) Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for indemnification, contribution, earnout, adjustment of purchase price or similar obligations, in each case incurred or assumed in connection with the acquisition or disposition of any business, assets or Equity Interests of the Company or a Restricted Subsidiary otherwise permitted under this Indenture;
(xiii) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five business days of incurrence, and Indebtedness arising from negative account balances in cash pooling arrangements arising in the ordinary course of business;
(xiv) obligations of the Company or its Restricted Subsidiaries in respect of customer advances received and held in the ordinary course of business; and
(xv) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) not to exceed the greater of (x) $50.0 million and (y) 5.0% of Consolidated Total Assets at the time of incurrence thereof (which amount may be incurred, in whole or in part, under any of the Credit Facilities).
(c) For purposes of determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described above as of the date of incurrence thereof or is entitled to be incurred pursuant to clause (a) of this Section 4.09, the Company shall, in its sole discretion, at the time the proposed Indebtedness is incurred, (x) classify all or a portion of that item of Indebtedness on the date of its incurrence under either clause (a) of this Section 4.09 or under any category of Permitted Debt, (y) reclassify at a later date all or a portion of that or any other item of Indebtedness as being or having been incurred in any manner that complies with this Section 4.09 and (z) elect to comply with this Section 4.09 and the applicable definitions in any order; provided, however, that Indebtedness incurred pursuant to the Credit Agreement on the Issue Date (or any subsequent or replacement Credit Facility contemplated by the Company’s offering memorandum dated October 20, 2010 relating to the Notes) shall be treated as incurred pursuant to clause (1) of the definition of Permitted Debt and may not later be reclassified.
(d) The accrual of interest, accretion or amortization of original issue discount and the payment of interest on Indebtedness in the form of additional Indebtedness or payment of dividends on Capital Stock in the forms of additional shares of Capital Stock with the same terms will not be deemed to be an incurrence of Indebtedness for purposes of this Section 4.09.
(e) The Company shall not incur, create, issue, assume, guarantee or otherwise become liable for any Indebtedness that is contractually or by its terms subordinate or by junior in right of payment to any Senior Debt of the terms of any agreement Company and not subordinate or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate junior in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notessame extent; and
(B) such new Indebtednessprovided, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided furtherhowever, that in no event may Indebtedness of the Company will be deemed to be contractually subordinated in right of payment solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority or by virtue of structural subordination. No Subsidiary Guarantor will incur, create, issue, assume, guarantee or otherwise become liable for any Indebtedness that ranks equally with is contractually or by its terms subordinate or junior in right of payment to the Notes Senior Debt of such Subsidiary Guarantor and not subordinate or junior in right of payment to such Subsidiary Guarantor’s Note GuaranteeSubsidiary Guarantee to the same extent; provided, as applicablehowever, be Refinanced by means of any that no Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant will be deemed to this clause (5);be contractually subordinated in right of payment solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority or by virtue of structural subordination.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount ratio of all outstanding consolidated Indebtedness of the Company and its the Restricted Subsidiaries on a consolidated basis would be greater than 65% of to Adjusted Total Assets as of any date of Incurrencewould exceed 0.65 to 1.00.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount ratio of all outstanding Subsidiary Indebtedness and consolidated Secured Indebtedness of the Company and its the Restricted Subsidiaries on a consolidated basis would be greater than 45% of to Adjusted Total Assets as of any date of Incurrencewould exceed 0.40 to 1.00.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 1.50 to 1.0 1.0; provided that for purposes of calculating the Interest Coverage Ratio pursuant to this clause (c), for each of the first four (4) full Fiscal Quarters commencing with the Fiscal Quarter beginning on April 1, 2020, Consolidated EBITDA for any such Fiscal Quarter shall be calculated on a Pro Forma Basis)as the greater of (x) Consolidated EBITDA in such Fiscal Quarter and (y) zero; provided, further that, for so long as any Subsidiary of the Company Guarantees the Notes, the amount of additional Indebtedness that may be Incurred from and after the Issue Date by Restricted Subsidiaries that are not Subsidiary Guarantors under this clause (c) shall not exceed the greater of $900.0 million and an amount equal to 7.0% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding.
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) the greater of $3,400.0 4,000.0 million plus (y) the aggregate principal and an amount equal to 30.0% of Adjusted Total Assets at any time outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing Refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancingRefinancing;
(2) Indebtedness owed to:
(A) The Company an Issuer or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company an Issuer or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the CompanyIssuers, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law)Guarantor; and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue DateDate and the Note Guarantees;
(4) Indebtedness outstanding as of the Issue DateDate (other than Indebtedness described in clause (1) above);
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund refund, other outstanding Indebtedness that was incurred under the provisions of paragraph (other than clauses (1a), (2b) or (c) of this covenant or clauses (3), (64), (5), (8), (9), (10), (1114), (17), (18), (24), (25) and or (1327) of this Section 4.08(d)) , in an amount not to exceed the amount so Refinanced plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums premiums, customary reserves required to be funded and maintained in connection with such Indebtedness and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance” or a “Refinancing”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, Indebtedness will be permitted under this clause (5) only if:if (except in the case of COVID-19 Relief Funds and Refinancings thereof):
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes, if applicable; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the earlier of (i) the Stated Maturity of the Subordinated Indebtedness to be Refinanced, or (ii) the date that is 91 days after the Stated Maturity of the Notes, and the Average Life of such new Indebtedness is at least equal to the earlier of (1) the remaining Average Life of the Subordinated Indebtedness to be Refinanced, or (2) 91 days more than the Average Life of the Notes; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);
(6) (i) obligations (contingent or otherwise) existing or arising under any Hedging Obligations or Swap Contracts (including Secured Hedge Agreements) entered into for the purpose of mitigating risks associated with fluctuations in interest rates (including both fixed to floating and floating to fixed contracts), foreign exchange rates or commodity price fluctuations in a non-speculative manner and (ii) Indebtedness consisting of any Permitted Bond Hedge Transaction or any Permitted Warrant Transaction;
(7) Indebtedness under Secured Cash Management Agreements, cash pooling agreements with hotel management companies and in respect of netting services, the Overdraft Line and otherwise in connection with deposit accounts, commercial credit cards, stored value cards, purchasing cards and treasury management services, including any obligations pursuant to Cash Management Agreements, and other netting services, overdraft protections, automated clearing-house arrangements, employee credit card programs, controlled disbursement, ACH transactions, return items, interstate depository network service, Society for Worldwide Interbank Financial Telecommunication transfers, cash pooling and operational foreign exchange management, and in each case, similar arrangements and otherwise in connection with cash management, including cash management arrangements among the Company and its Subsidiaries;
(8) (A) Finance Leases, synthetic lease obligations, purchase money obligations or mortgage financings Incurred after the Issue Date and (B) Indebtedness secured by purchase money Liens, in an aggregate outstanding principal amount for clauses (A) and (B) on a combined basis Incurred from and after the Issue Date not to exceed the greater of $350.0 million and an amount equal to 2.5% of Adjusted Total Assets at any time outstanding; provided, however, that, subject to clause (g), any Refinancing Incurred under clause (5) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (8) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (8);
(9) Indebtedness of the Company, to the extent the net proceeds therefrom are promptly:
(A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change of Control Triggering Event; or
(B) deposited to defease or discharge the Notes as described in Articles 8 and 11 hereof;
(10) Indebtedness incurred in connection with any Sale and Leaseback Transaction;
(11) customer deposits and advance payments received from customers in the ordinary course of business;
(12) any Guarantee issued by the Company pursuant to the matters described in any indemnity agreements entered into for the benefit of a title company that has been engaged by the Company or any of its Restricted Subsidiaries;
(13) Guarantees by the Company or any Restricted Subsidiary of any Indebtedness of the Company or any Restricted Subsidiary; provided that such Indebtedness was permitted to be Incurred pursuant to this covenant other than under this clause (13); provided further that any such Guarantees by an Issuer or any Subsidiary Guarantor of any Indebtedness of any Restricted Subsidiary that is not an Issuer or a Subsidiary Guarantor is subordinated in right of payment to the obligations of the Issuers and the Subsidiary Guarantors under the Notes;
(14) Guarantees issued by the Company or any of its Restricted Subsidiaries of any Indebtedness of Joint Ventures or Unrestricted Subsidiaries Incurred from and after the Issue Date in an amount not to exceed the greater of $250.0 million and 2.0% of Adjusted Total Assets at any time outstanding, if both before and after giving effect to the incurrence of each such Guarantee, no Default or Event of Default has occurred or is continuing; provided, however, that, subject to clause (g), any Refinancing Incurred under clause (5) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (14) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (14);
(15) Indebtedness of the Company or any of its Restricted Subsidiaries supported by a letter of credit issued under any Credit Facilities in an aggregate principal amount not to exceed the stated amount of such letter of credit (but which stated amount may include the amount of any anticipated premiums, expenses (including upfront fees and original issue discount) and any accretion in the principal amount thereof);
(16) contractual indemnity obligations entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of ownership or operation of their respective Properties;
(17) Indebtedness (A) of a Person outstanding on the date of any acquisition of such Person, including through the acquisition of a Person that becomes a Restricted Subsidiary or is acquired by, or merged or consolidated with or into, the Company or any Restricted Subsidiary, or that is assumed by the Company or any Restricted Subsidiary in connection with any such acquisition (other than Indebtedness incurred by such Person in connection with, or contemplation of, such acquisition, merger or consolidation), (B) Incurred to provide all or any portion of the funds utilized to acquire, or to consummate the transaction or series of related transactions in connection with or in contemplation of any acquisition, of a Person that becomes a Restricted Subsidiary, (C) assumed in connection with an asset acquisition by the Company or a Restricted Subsidiary or (D) Incurred in connection with any Investment in a third party permitted under this Indenture, in each case under this clause (17), as long as immediately after giving effect thereto, either (i) the Interest Coverage Ratio on a Pro Forma Basis would be at least 1.50 to 1.0 or (ii) the Interest Coverage Ratio on a Pro Forma Basis would be greater than or equal to the actual Interest Coverage Ratio immediately prior to such acquisition, incurrence or assumption, in each case under this clause (17), with the Interest Coverage Ratio calculated in accordance with clause (c) above;
(18) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, together with any other Indebtedness Incurred from and after the Issue Date pursuant to this clause (18) or clause (c) above by such Restricted Subsidiaries, in an amount not to exceed the greater of $900.0 million and an amount equal to 7.0% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding; provided, however, that, subject to clause (g), any Refinancing Incurred under clause (5) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (18) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (18);
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Incurrence of Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, Guarantee or in any Indebtedness ifmanner become directly or indirectly liable, immediately contingently or otherwise, for the payment of, in each case, to “incur,” any Indebtedness, unless at the time of the incurrence and after giving pro forma effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromof the Indebtedness, the aggregate principal amount Consolidated Fixed Charge Coverage Ratio of all the Company would be at least 2.00 to 1.00.
(b) The provisions of Section 4.09(a) will not prohibit the incurrence by the Company and its Restricted Subsidiaries of any of the following items of Indebtedness (collectively, “Permitted Indebtedness”):
(1) Indebtedness outstanding on the Issue Date, including the Existing Notes (other than Indebtedness described in clauses (3) and (12) below);
(2) Indebtedness of the Company or a Restricted Subsidiary incurred for the making of expenditures for the improvement or repair, to the extent the improvements or repairs may be capitalized in accordance with GAAP, or additions, including by way of acquisitions of businesses and related assets, to the property and assets of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% Subsidiaries, including, without limitation, the acquisition of Adjusted Total Assets as assets subject to operating leases, Indebtedness incurred under the Credit Facilities, or incurred by assumption in connection with additions, including additions by way of any date acquisitions or capital contributions of Incurrence.
(b) The Company will notbusinesses and related assets, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness property and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness assets of the Company and its Restricted Subsidiaries on a consolidated basis would be Subsidiaries; provided, that the aggregate principal amount of this Indebtedness (when taken together with Permitted Refinancing Indebtedness incurred pursuant to clause (6) below in respect of Indebtedness originally incurred under this clause (2)) outstanding at any time may not exceed the greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), ) $75 million and (b) and (c) 2.5% of this Section 4.08, Consolidated Net Tangible Assets determined on the Company or any date of its Restricted Subsidiaries may Incur each and all incurrence of the following:such Indebtedness;
(13) Indebtedness of the Company or a Restricted Subsidiary (a) incurred for any of purpose permitted under the Subsidiary Guarantors outstanding under Credit Facilities and or (b) owing in respect of any Accounts Receivable Securitization, operating lease, or other off-balance sheet obligation existing on the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (Issue Date that arises because, after the Issue Date, such off-balance sheet obligations are refinanced with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof)Indebtedness, in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) provided, that the aggregate principal amount of any this Indebtedness outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause at any time may not exceed an amount equal to the greater of (1x) or any portion thereof, $800 million and (y) $550 million plus 25% of Consolidated Net Tangible Assets determined on the aggregate amount date of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with incurrence of such refinancingIndebtedness;
(24) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if of the Company owed to the General Partner or any Subsidiary Guarantor an Affiliate of the General Partner that is an obligor, the Indebtedness unsecured and that is subordinated in right of payment to the Notes; provided, in that the case aggregate principal amount of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such this Indebtedness (other than when taken together with Permitted Refinancing Indebtedness incurred pursuant to the Company or any other Restricted Subsidiaryclause (6) shall be deemed, below in each case, to constitute an Incurrence respect of such Indebtedness not permitted by originally incurred under this clause (2)(B4);
(3) outstanding at any time under this clause may not exceed $50 million and this Indebtedness has a final maturity date later than the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as final maturity date of the Issue DateNotes;
(5) Indebtedness issued owed by the Company to any Restricted Subsidiary or owed by any Restricted Subsidiary to the Company or to any other Restricted Subsidiary;
(6) Permitted Refinancing Indebtedness incurred in exchange for, or respect of Indebtedness incurred as permitted under the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than Consolidated Fixed Charge Coverage Ratio test set forth in Section 4.09(a) above) and clauses (1), (2)) and (4) above, this clause (6), ) and clauses (10)8), (11) and (13) below;
(7) the incurrence by the Company or a Restricted Subsidiary of this Indebtedness owing directly to its insurance carriers, without duplication, in connection with the Company’s, its Subsidiaries’ or its affiliates’ self-insurance programs or other similar forms of retained insurable risks for their respective businesses, consisting of reinsurance agreements and indemnification agreements, and Guarantees of the foregoing, secured by letters of credit; provided, that any Consolidated Fixed Charges associated with the Indebtedness evidenced by such reinsurance agreements, indemnification agreements, Guarantees and letters of credit will be included, without duplication, in any determination of the Consolidated Fixed Charge Coverage Ratio test set forth in Section 4.08(d)4.09(a) plus above;
(8) Indebtedness of the Company and its Restricted Subsidiaries in respect of “Capital Leases,” meaning, generally, any lease of any property which would be required to be classified and accounted for as a capital lease on a balance sheet of the lessor; provided, that the aggregate amount of feesthis Indebtedness (when taken together with Permitted Refinancing Indebtedness incurred pursuant to clause (6) above in respect of Indebtedness originally incurred under this clause (8)) outstanding at any time may not exceed $30 million;
(9) Indebtedness of the Company and its Restricted Subsidiaries represented by letters of credit supporting (a) obligations under workmen’s compensation laws, underwriting discounts(b) obligations to suppliers of propane or energy commodity derivative providers in the ordinary course of business consistent with past practices, accrued not to exceed $15 million at any one time outstanding, and unpaid interest(c) the repayment of Indebtedness permitted to be incurred under this Indenture;
(10) bid, premiums appeal, reimbursement, performance, surety and other costs similar bonds and expenses Incurred completion guarantees issued or provided by, or for the account of, the Company or a Restricted Subsidiary (a) in the ordinary course of business, (b) in connection with the enforcement of rights or claims of the Company or any of its Subsidiaries or (c) in connection with judgments that do not result in a Default or Event of Default, and any Guarantees or obligations with respect to letters of credit functioning as or supporting any of the foregoing bonds or obligations and workers’ compensation claims in the ordinary course of business;
(11) Indebtedness of the Company or its Restricted Subsidiaries incurred in connection with business acquisitions in favor of the sellers of such refinancing businesses in an aggregate principal amount not to exceed $70 million at any one time outstanding (including any Permitted Refinancing Indebtedness incurred pursuant to clause (6) above in respect of Indebtedness incurred under this clause (11)) determined on the date of incurrence of such Indebtedness; provided, that the principal amount of such Indebtedness incurred in connection with any such action, to “Refinance”acquisition shall not exceed the Fair Market Value of the assets so acquired;
(12) the Notes (other than any Additional Notes issued after this offering), the Note Guarantees and the Exchange Notes (and the Guarantees thereof);
(13) the incurrence by the Company or its Restricted Subsidiaries of Permitted Acquisition Indebtedness;
(14) liability of the Company or any Restricted Subsidiary in respect of Indebtedness of any Unrestricted Subsidiary or any Joint Venture but only to the extent that such liability is the result of (a) the Company’s or such Restricted Subsidiary’s being a general partner or member of, or owner of Capital Stock in, such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (14) (a) and then outstanding does not exceed $25 million or (b) the pledge of (or a Guarantee limited in recourse solely to) Capital Stock in such Unrestricted Subsidiary or Joint Venture held by the Company or such Restricted Subsidiary to secure such Indebtedness and solely to the extent such Indebtedness constitutes Non-Recourse Debt;
(15) the incurrence by the Company or its Restricted Subsidiaries of Indebtedness consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries;
(16) the Guarantee by the Company or its Restricted Subsidiaries of Indebtedness of the Company or its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09;
(17) the incurrence of Indebtedness by any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect legal defeasance or covenant defeasance or satisfy and discharge this Indenture as described in Section 8.02 and Section 11.01;
(18) the incurrence of any obligations to any lender in respect of treasury management arrangements, depositary or other cash management services, including any treasury management line of credit;
(19) the incurrence of in-kind obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business; and
(20) additional Indebtedness of the Company or its Restricted Subsidiaries in an aggregate outstanding amount not to exceed the amount so Refinanced; provided that greater of (a) $50 million and (b) 5% of Consolidated Net Tangible Assets determined on the date of incurrence of such Indebtedness, the proceeds . For purposes of which are used to Refinance Subordinated Indebtedness, will be permitted under determining compliance with this clause (5) only ifSection 4.09:
(A1) such new Indebtedness, by its terms in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness entitled to be Refinanced is subordinated to incurred in compliance with the NotesConsolidated Fixed Charge Coverage Ratio in Section 4.09(a), the Company may, in its sole discretion, classify (or later reclassify) in whole or in part such items of Indebtedness in any manner that complies with this Section 4.09, and such item of Indebtedness or a portion thereof may be classified (or later reclassified) in whole or in part as having been incurred under more than one of the applicable clauses of Permitted Indebtedness or in compliance with the Consolidated Fixed Charge Coverage Ratio in Section 4.09(a); and
(B2) such new all Indebtedness outstanding on the Issue Date under the Credit Agreement shall be deemed Incurred under clause (3) of Section 4.09(b) and may not be reclassified in the future. The “amount” or “principal amount” of any Indebtedness or Preferred Stock or Redeemable Capital Stock outstanding at any time of determination as used herein shall be as set forth below or, if not set forth below, determined in accordance with GAAP:
(1) the accreted value of the Indebtedness, determined as 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;
(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 Incurrence determination; and
(b) the amount of the Indebtedness of the other Person;
(4) in the case of any Capital Lease obligation, the amount of Indebtedness represented by such obligation being the capitalized amount of such new Indebtednessobligation determined in accordance with GAAP, does not mature and the stated maturity thereof being the date of the last payment of rent or any other amount due under such lease prior to the Stated Maturity first date upon which such lease may be prepaid by the lessee without payment of a penalty;
(5) in the case of any Redeemable Capital Stock, as specified in the definition thereof;
(6) in the case of all other unconditional obligations, the amount of the Subordinated liability thereof determined in accordance with GAAP; and
(7) in the case of all other contingent obligations, the maximum liability at such date of such Person. For purposes of determining any particular amount of Indebtedness, if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (3) of the definition of Permitted Indebtedness to be Refinanced, and the Average Life letters of credit relate to other Indebtedness, then the amount of such new other Indebtedness is at least equal to the remaining Average Life face amount of such letters of credit shall not be included. If Indebtedness is secured by a letter of credit that serves only to secure such Indebtedness, then the Subordinated Indebtedness to total amount deemed incurred shall be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment equal to the Notes or greater of (x) the principal of such Subsidiary Guarantor’s Note Guarantee, as applicable, Indebtedness and (y) the amount that may be Refinanced by means drawn under such letter of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);credit.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries todirectly or indirectly, Incur any Subsidiary Indebtedness or any Secured Indebtedness ifIndebtedness; provided, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefromhowever, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, that the Company or any of its Restricted Subsidiaries may Incur each and all Indebtedness if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is Incurred would have been at least 2.0 to 1, determined on a pro forma basis (including a pro forma application of the following:net proceeds therefrom), as if the additional Indebtedness had been Incurred at the beginning of such four-quarter period.
(1b) Indebtedness Section 4.09(a) shall not prohibit the Incurrence of the Company or any of the Subsidiary Guarantors outstanding following items of Indebtedness (collectively, “Permitted Debt”):
(i) the Incurrence by the Company of Indebtedness under Credit Facilities (and the issuance or creation Incurrence by the Guarantors of letters of credit and bankers’ acceptances thereunder or Guarantees thereof) in connection therewith an aggregate principal amount at any one time outstanding pursuant to this clause (i) (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum maximum potential liability of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs thereunder) not to exceed the greater of (ax) $680.0 million, and (by) abovethe Borrowing Base on such date of Incurrence;
(ii) plus the Incurrence of Existing Indebtedness;
(2iii) the Incurrence by the Company and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the Issue Date;
(iv) the Incurrence by the Company or any Restricted Subsidiary thereof 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 case business of any refinancing 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 permitted under Incurred pursuant to this clause (1iv), not to exceed at any time outstanding the greater of (x) or any portion thereof, $40.0 million and (y) 7.5% of the aggregate amount Company’s Consolidated Net Tangible Assets on such date of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancingIncurrence;
(2v) the Incurrence by the Company or any Restricted Subsidiary of the Company of Permitted Refinancing Indebtedness owed toin 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 Section 4.09(a) or clauses (ii), (iii), (iv), (v), or (xv) 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:
(A1) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligorthe obligor on such Indebtedness, such Indebtedness must be unsecured and expressly subordinated to the Indebtedness is subordinated prior payment in right full in cash of payment all Obligations with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor Guarantor;
(except to the extent prohibited by applicable Gaming Law); and provided further that any event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such 2) Indebtedness (other than 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;
(3) (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 SubsidiarySubsidiary thereof and (B) 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 (2)(BSection 4.09(b)(vi);
(3vii) the Notes Guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be issued on the Issue DateIncurred by another provision of this Section 4.09;
(4viii) the Incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations that are Incurred for the purpose of fixing, hedging or swapping interest rate, commodity price or foreign currency exchange rate risk (or to reverse or amend any such agreements previously made for such purposes), and not for speculative purposes, and that do not increase the Indebtedness outstanding as of the Issue Dateobligor outstanding at any time other than as a result of fluctuations in interest rates, commodity prices or foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder;
(5ix) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange forarising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the net proceeds Company or any of which are used its Restricted Subsidiaries pursuant to extendsuch agreements, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses in any case Incurred in connection with the disposition of any business, assets or Capital Stock of any Restricted Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such refinancing (any business, assets or Capital Stock of such action, to “Refinance”Restricted Subsidiary for the purpose of financing such acquisition), so long as the principal amount does not exceed the gross proceeds actually received by the Company or any Restricted Subsidiary thereof in connection with such disposition;
(x) 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 drawn against insufficient funds in the ordinary course of business, provided, however, that such Indebtedness is extinguished within five Business Days of its Incurrence;
(xi) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit in respect of workers’ compensation claims or self-insurance obligations or bid, performance or surety bonds (in each case other than for an obligation for borrowed money);
(xii) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business; provided 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;
(xiii) the Incurrence by the Company of Indebtedness to the extent that the net proceeds thereof are promptly deposited to defease or to satisfy and discharge the Notes;
(xiv) the incurrence of any Indebtedness by a Receivables Subsidiary that is not recourse to the Company or any other Restricted Subsidiary of the Company (other than Standard Securitization Undertakings) incurred in connection with a Qualified Receivables Transaction; or
(xv) 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 Section 4.09(b)(xv), not to exceed the amount so Refinanced; provided greater of (x) $40.0 million and (y) 7.5% of the Company’s Consolidated Net Tangible Assets on such date of Incurrence. For purposes of determining compliance with this Section 4.09, in the event that Indebtednessany proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in Section 4.09(b)(i) through (xv) above, or is entitled to be Incurred pursuant to Section 4.09(a) above, the proceeds of which are used to Refinance Subordinated Indebtedness, Company will be permitted to classify such item of Indebtedness at the time of its Incurrence in any manner that complies with this covenant. In addition, any Indebtedness originally classified as Incurred pursuant to Section 4.09(b)(i) through (xv) 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 at the time of such reclassification. Notwithstanding the foregoing, Indebtedness under this clause (5the Credit Agreement outstanding on the Issue Date shall be deemed to have been Incurred on such date in reliance on the exception provided by Section 4.09(b)(i) only if:above.
(Ac) such new IndebtednessNotwithstanding any other provision of Section 4.09, by its terms or by the terms maximum amount of any agreement or instrument Indebtedness that may be Incurred pursuant to which such new 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 issued subordinate or remains outstanding, junior in right of payment to any other Indebtedness of the Company unless it is expressly made subordinate or junior in right of payment to the Notes at least to the same extent and no Guarantor shall Incur any Indebtedness that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or any other Indebtedness of such Subsidiary Guarantor unless it is subordinate in right of payment to such Guarantor’s Note GuaranteeGuarantee to the same extent; provided that no Indebtedness shall be deemed to be subordinated in right of payment to any other Indebtedness of the Company or any Guarantor, as applicable, be Refinanced solely by means reason of any Indebtedness Liens or Guarantees arising or created in respect thereof or by virtue of the fact that the holders of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);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: Indenture (Brown Shoe Co Inc)
Incurrence of Indebtedness. (a) The Prior to the Investment Grade Date, the Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur directly or indirectly create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, "Incur"), any Indebtedness if(including Acquired Debt) or issue any Disqualified Stock; provided, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromhowever, the aggregate principal amount of all outstanding Indebtedness of that the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each incur Indebtedness (including Acquired Debt) and all issue Disqualified Stock if the Fixed Charge Coverage Ratio for the Company's most recently ended four full fiscal quarters for which financial statements are available immediately preceding the date on which such Indebtedness is incurred or Disqualified Stock is issued would have been at least 3.25 to 1, determined on a pro forma basis (including a pro forma application of the following:
net proceeds therefrom), as if such Indebtedness had been incurred or such Disqualified Stock had been issued at the beginning of such four-quarter period. The foregoing provisions will not apply to (1i) Indebtedness of Permitted Refinancing Indebtedness; (ii) the incurrence by the Company or of any amount of Subordinated Indebtedness and up to $400 million of Senior Indebtedness after the Subsidiary Guarantors outstanding Initial Issuance Date if the Fixed Charge Coverage Ratio for the Company's most recently ended four full fiscal quarters for which financial statements are available immediately preceding the date on which such Indebtedness is incurred would have been at least 1.75 to 1 (determined as in the immediately preceding paragraph); (iii) Permitted Hedging Agreements; (iv) borrowings under the Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), Facility in an aggregate principal amount at any one time outstanding not to exceed the sum of $_______; and (1v) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of intercompany Indebtedness pursuant to this clause (y), between and among the Company and any of its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereofSubsidiaries; provided, the aggregate amount of feeshowever, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
that (A) The Company any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than a Restricted Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
and (B) any sale or other Restricted Subsidiary; provided transfer of any such Indebtedness to a Person that if is not either the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note GuaranteeRestricted Subsidiary, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);the case may be.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries the Guarantors to, Incur any directly or indirectly, incur Indebtedness ifthat will constitute First Lien Debt, immediately after giving effect to unless the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
CNTA Ratio (b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences incurrence and the application of Indebtedness pursuant the net proceeds thereof) is equal to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and or greater than 1.66 to 1.00.
(b) above) plus (2) in the case For purposes of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereofSection 4.07, the aggregate amount of feesFirst Lien Debt outstanding as of any date of determination will be calculated as the sum of, underwriting discountswithout duplication:
(1) the aggregate outstanding principal amount of all Indebtedness (or, accrued if such Indebtedness is issued with original issue discount, the then accreted value thereof) for borrowed money that constitutes First Lien Debt, plus
(2) the aggregate face amount of any letters of credit or similar instruments issued but not yet drawn that, when drawn, would constitute First Lien Debt, and unpaid interestthe aggregate amount of reimbursement obligations in respect of drawn letters of credit or similar instruments that constitute First Lien Debt, premiums plus
(3) the aggregate amount of undrawn and unutilized commitments under which any First Lien Debt could be drawn and/or utilized as of such date, plus
(4) the aggregate outstanding principal amount of any First Lien Debt (or, if such Indebtedness is issued with original issue discount, the then accreted value thereof) outstanding consisting of notes, bonds, debentures, credit agreements (including any Eligible Commodity Hedge Financing) or similar instruments or agreements.
(c) Section 4.07(a) hereof will not apply to:
(1) any Specified Cash Management and Swap Obligations, other costs Cash Management Obligations that would constitute First Lien Debt and expenses Incurred in connection with such refinancingany First Lien Hedging Obligations;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
Indebtedness under the Credit Agreement and Term Loan Agreements outstanding on the date of this Indenture, plus (B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the 2019 Notes, plus (C) the 2020 Notes, plus (D) the 2021 Notes, plus (E) the 2023 Notes, plus (F) up to $2.0 billion in additional Indebtedness incurred to repay or redeem secured debt, secured lease obligations or preferred securities of any Project Subsidiary;
(3) (A) the Notes issued hereby on the date of this Indenture, plus (B) Indebtedness under the October 2013 Term Loan Agreement whether drawn on the date of this Indenture or thereafter;
(4) any accretion of original issue discount or the payment of interest on any Indebtedness in the case form of Indebtedness with the Companysame terms (it being understood that each will be taken into account in determining the aggregate amount of First Lien Debt outstanding as specified in Section 4.07(b)(1) hereof);
(5) any incurrence of Indebtedness that constitutes First Lien Debt (A) resulting from the drawing of, or the Note Guaranteereimbursement obligations under, in the case any letters of a Subsidiary Guarantor credit or similar instruments or (except B) resulting from borrowings under any undrawn and unutilized commitments to the extent prohibited by applicable Gaming Law); and provided further that any event which results in any lend such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or any other Restricted Subsidiary) shall be deemedIndebtedness, in each case, that were (i) in existence as of the 2017 Notes Issue Date (including without limitation under the Credit Agreement, as in effect on the 2017 Notes Issue Date) or (ii) included in any calculation of the amount of First Lien Debt outstanding pursuant to Section 4.07(b) hereof in connection with an incurrence of First Lien Debt pursuant to Section 4.07(a) hereof; and, in either case, any Permitted Replacement Commitments that replaced such letters of credit, similar obligations and commitments;
(6) any Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness that was permitted to be incurred pursuant to this Section 4.07; and
(7) any Eligible Commodity Hedge Financings, so long as the lenders thereunder (or their representatives on their behalf) become a party to, or consent or agree to be bound by the terms and conditions, of the Collateral Agency and Intercreditor Agreement.
(d) Notwithstanding the foregoing, the Company or any of the Guarantors may not incur (1) additional Indebtedness (other than Specified Cash Management and Swap Obligations, other Cash Management Obligations that would constitute an Incurrence First Lien Debt, any First Lien Hedging Obligations and any extension, renewal or refinancing of such the Eligible Commodity Hedge Financings existing on the 2017 Notes Issue Date) pursuant to Section 4.07(a) hereof, (2) any Permitted Refinancing Indebtedness not permitted with respect to Indebtedness incurred under clauses (2), (3), (4) or (5) of Section 4.07(c) hereof or (3) any Permitted Refinancing Indebtedness with respect to any of the foregoing, in each case that will constitute First Lien Debt unless:
(1) The Company and the Guarantors shall enter into, and deliver to the Collateral Agent, in the sole discretion of the Collateral Agent, a mortgage modification or new mortgage with regard to each Mortgaged Property, in proper form for recording in all applicable jurisdictions, in a form reasonably satisfactory to the Collateral Agent and, as applicable, consistent with the mortgage modifications delivered in connection with the issuance of the Notes;
(2) The Company or the applicable Guarantor will cause to be delivered a local counsel opinion with respect to each Mortgaged Property in form and substance, and issued by this clause (2)(B)law firms, in each case, reasonably satisfactory to the Collateral Agent and, as applicable, consistent with the local counsel opinions delivered in connection with the issuance of the Notes;
(3) The Company or the applicable Guarantor will cause a title company approved by the Collateral Agent to have delivered to the Collateral Agent an endorsement to each title insurance policy then in effect for the benefit of the Secured Parties, date down(s) or other evidence reasonably satisfactory to the Collateral Agent (which may include a new title insurance policy) (each such delivery, a “Title Datedown Product”), in each case insuring that (i) the priority of the Lien of the applicable mortgage(s) as security for the Notes has not changed, (ii) since the date of the Title Datedown Product delivered most recently prior to be issued on (and not in connection with) such additional Indebtedness, there has been no change in the Issue Date;condition of title and (iii) there are no intervening liens or encumbrances which may then or thereafter take priority over the Lien of the applicable mortgage(s), in each case other than with respect to Permitted Liens; and
(4) Indebtedness outstanding as The Company or the applicable Guarantor will, upon the request of the Issue Date;
(5) Indebtedness issued in exchange forCollateral Agent, or deliver to the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtednessapproved title company, the proceeds Collateral Agent and/or all other relevant third parties all other items reasonably necessary to maintain the continuing priority of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms Lien of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to mortgages as security for the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);.
Appears in 1 contract
Sources: Indenture (Calpine Corp)
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries todirectly or indirectly, Incur any Subsidiary Indebtedness Indebtedness; provided, however, that the Company or any Secured Subsidiary Guarantor may Incur Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness (and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all Acquired Indebtedness) if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is Incurred would have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the following:net proceeds therefrom), as if the additional Indebtedness had been Incurred at the beginning of such four-quarter period.
(1b) Clause (a) of this Section 4.09 shall not prohibit the Incurrence of any of the following items of Indebtedness of (collectively, “Permitted Debt”):
(i) the Incurrence by the Company or any Restricted Subsidiary of the Subsidiary Guarantors outstanding Company of Indebtedness under Credit Facilities (including, without limitation, the Incurrence by Restricted Subsidiaries of Guarantees thereof and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), thereunder) in an aggregate principal amount at any one time outstanding pursuant to this clause (i) not to exceed the greater of (A) $220.0 million less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary thereof to permanently repay any such Indebtedness pursuant to Section 4.10 (provided that the Company and its Restricted Subsidiaries shall not be required to use Asset Sale proceeds to permanently reduce revolver commitments) or (B) the sum of (1) (x) $3,400.0 65.0 million plus (y2) the aggregate principal amount Borrowing Base (provided, however, that, in the case of each of subclauses (A) and (B), Indebtedness Incurred by any outstanding Incremental Term Loans Restricted Subsidiaries of the Company that are not Guarantors (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (yi), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, limited to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B$50.0 million at any time outstanding);
(3ii) the Incurrence of Existing Indebtedness;
(iii) the Incurrence by the Company and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the Issue DateDate (as well as the notes and Guarantees issued in exchange therefor pursuant to the Registration Rights Agreement);
(4iv) Indebtedness outstanding as the Incurrence by the Company or any Restricted Subsidiary of the Issue DateCompany 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 installation, construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate amount at any time outstanding, including all Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred pursuant to this clause (iv), not to exceed the greater of (x) $15.0 million and (y) 2.5% of Consolidated Net Tangible Assets;
(5v) the Incurrence by the Company or any Restricted Subsidiary of the Company of Permitted Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to extendrefund, refinance, renew, refinance or replace, defease, discharge or refund other outstanding Indebtedness (other than clauses intercompany Indebtedness) that was permitted by this Indenture to be Incurred under clause (1), (2), (6), (10), (11) and (13a) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing 4.09 or clause (any such action, to “Refinance”ii), in an amount not to exceed the amount so Refinanced; provided that Indebtedness(iii), the proceeds (iv), (v), (xiii) or (xvii) of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:Section 4.09(b);
(Avi) such new Indebtedness, the Incurrence by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries (including, without limitation, the issuance of Preferred Stock of a Restricted Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes Company or such Subsidiary Guarantor’s Note Guaranteeanother Restricted Subsidiary); provided, as applicablehowever, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);that:
Appears in 1 contract
Sources: Indenture (Hexacomb CORP)
Incurrence of Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, Incur, directly or indirectly, any Indebtedness; provided, however, that the Company and any Restricted Subsidiary may Incur any Indebtedness if, immediately if on the date of such Incurrence and after giving effect to thereto the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis Leverage Ratio would be greater than 65% of Adjusted Total Assets as of any date of Incurrencenot exceed 5.5:1.0.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to Notwithstanding the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses foregoing paragraph (a), (b) and (c) of this Section 4.08, the Company or and any of its Restricted Subsidiaries Subsidiary may Incur each and all of the followingfollowing Indebtedness:
(1) Bank Indebtedness of (including, without limitation, Bank Indebtedness Incurred under the Company Existing Credit Facility) or any of Pari Passu Lien Obligation (including, without limitation, the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), Existing Senior Secured Notes) in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancingexceeding £5,300,000,000;
(2) Indebtedness of the Company owed to:
(A) The Company to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary Guarantor evidenced owed to and held by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligorRestricted Subsidiary; provided, the Indebtedness is subordinated in right however, that (A) any subsequent issuance or transfer of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary Capital Stock or any subsequent transfer of such Indebtedness or any other event that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary shall be deemed to constitute the Incurrence of such Indebtedness by the obligor thereon, (B) if an Intermediate Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly subordinated for the benefit of the Holders to the prior payment in full in cash of all obligations with respect to the relevant Intermediate Guarantee and (C) if the Issuer is the obligor on such Indebtedness, such Indebtedness is expressly subordinated for the benefit of the Holders to the prior payment in full in cash of all obligations with respect to the Notes;
(3) Indebtedness (A) represented by the Notes (not including any Additional Notes), (B) represented by the Intermediate Guarantees and the Senior Subordinated Subsidiary Guarantees, and (C) outstanding on the Closing Date (other than the Indebtedness described in clause (2) of this paragraph (b));
(4) Indebtedness consisting of Refinancing Indebtedness Incurred in respect of any Indebtedness described in clauses (3) or (4) of this paragraph (b) or under paragraph (a);
(5) Indebtedness of a Restricted Subsidiary acquired by the Company, the Issuer or any other Restricted Subsidiary after the Closing Date Incurred and outstanding on or prior to the Company date on which such Restricted Subsidiary was acquired by the Company, the Issuer or any other Restricted Subsidiary (other than Indebtedness Incurred in contemplation of, in connection with, as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Subsidiary of or was otherwise acquired by the Company, the Issuer or any other Restricted Subsidiary) shall be deemedor any Refinancing Indebtedness in respect thereof, not exceeding £100 million in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B)the aggregate at any one time outstanding;
(3) the Notes to be issued on the Issue Date;
(46) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtednessin respect of performance, by its terms bid, completion, surety or appeal bonds provided by the terms Company, the Issuer and any other Restricted Subsidiary in the ordinary course of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
their business and (B) such new Indebtedness, determined as under Interest Rate Agreements and Currency Agreements entered into for bona fide hedging purposes of the date of Incurrence of such new IndebtednessCompany, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, Issuer and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any other Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5)Subsidiary;
Appears in 1 contract
Sources: Indenture (Virgin Media Inc.)
Incurrence of Indebtedness. (a) 1.1 The Company Parent will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if(including Acquired Indebtedness), immediately provided that:
(a) the Parent and any of the Restricted Subsidiaries may Incur Indebtedness if on the date of such Incurrence and after giving pro forma effect to the Incurrence of such Indebtedness and the receipt and thereto (including pro forma application of the proceeds therefromthereof), the aggregate principal amount of all outstanding Indebtedness of Fixed Charge Coverage Ratio for the Company Parent and its Restricted Subsidiaries on a consolidated basis would be is greater than 65% of Adjusted Total Assets as of any date of Incurrence.2.00 to 1.00; and
(b) The Company will not, and will Non-Guarantors may not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
under paragraph (ca) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness above if, after giving pro forma effect to such Incurrence (including a pro forma application of the net proceeds therefrom), more than an aggregate of $30 million of Indebtedness of Non-Guarantors would be outstanding pursuant to this sub-paragraph (b) at such time.
1.2 Notwithstanding paragraph 1.1 above, the Incurrence of such the following Indebtedness and the receipt and application of the proceeds therefromshall be permitted (collectively, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).“Permitted Debt”):
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or Incurred pursuant to any of the Subsidiary Guarantors outstanding under Credit Facilities (which for the avoidance of doubt includes this Agreement and the issuance or creation of letters of credit and or bankers’ acceptances thereunder issued or in connection therewith (with letters of credit and bankers acceptances being created under any Credit Facility which shall be deemed to have a principal amount equal to the face amount thereof), and any Refinancing Indebtedness in an respect thereof and any guarantee provided in respect of such Indebtedness in a maximum aggregate principal amount at any one time outstanding not to exceed exceeding the sum of of:
(1) (x) $3,400.0 million plus (yi) the aggregate principal amount greater of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and $65.0 million or (b) above7.5% of Total Assets; plus
(ii) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) paragraph or any portion thereof), the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2b) guarantees by the Parent or any Restricted Subsidiary of Indebtedness of the Parent or any Restricted Subsidiary so long as the Incurrence of such Indebtedness is permitted under the terms of this Agreement;
(c) Indebtedness owed toof the Parent owing to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owing to and held by the Parent or any Restricted Subsidiary; provided, however, that:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(Bi) any other Restricted Subsidiary; provided that if the Company subsequent issuance or transfer of Capital Stock or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any other event which results in any such Restricted Subsidiary ceasing to be Indebtedness being beneficially held by a Person other than the Parent or a Restricted Subsidiary of the Parent; and
(ii) any sale or any subsequent other transfer of any such Indebtedness (to a Person other than to the Company Parent or any other a Restricted Subsidiary) Subsidiary of the Parent or an Obligor, shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, Parent or such Restricted Subsidiary or the net proceeds of which are used to extendObligor, refinanceas the case may be; provided, renewfurther, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (that any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or Indebtedness owing by the terms of any agreement Parent or instrument pursuant an Obligor to which such new Indebtedness is issued or remains outstanding, a Non-Obligor is expressly made subordinate subordinated in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(Bx) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary GuarantorRestricted Subsidiary’s Note GuaranteeGuarantee and (y) this Agreement or the Secured Obligations, as applicablethe case may be;
(d) Indebtedness represented by:
(i) the Notes (other than any Additional Notes), be Refinanced including any Note Guarantee thereof,
(ii) any Indebtedness (other than Indebtedness Incurred pursuant to paragraphs (a) and (b)) of the Parent and its Restricted Subsidiaries outstanding on the Closing Date,
(iii) Refinancing Indebtedness Incurred by means the Parent or any Restricted Subsidiary in respect of any Indebtedness described in this paragraph (d) or paragraphs (e) (g), (j), (k) or (n) of this paragraph 1.2 or Incurred pursuant to paragraph 1.1, and
(iv) Management Advances;
(e) (x) Indebtedness of the Parent or any of its Restricted Subsidiaries Incurred or issued to finance an acquisition, (y) Acquired Indebtedness that is assumed in connection with the acquisition of assets from a Person or of Persons that are merged into or consolidated with or otherwise combined with the Parent or a Restricted Subsidiary of the Parent in accordance with the terms of this Agreement or (z) Acquired Indebtedness of a Person or any of its Subsidiaries existing at the time such Person becomes as Restricted Subsidiary (provided that, in the case of (z), the only obligors with respect to such Indebtedness shall be those Persons who were obligors of such Indebtedness prior to such Person becoming a Restricted Subsidiary, on the date of consummation of such acquisition, merger, consolidation or other combination); provided that is not a Subsidiary Guarantor pursuant after giving effect to this clause (5);such Incurrence, issuance, assumption, merger, consolidation, combination or acquisition, either
Appears in 1 contract
Sources: Super Senior Revolving Credit Facilities Agreement (Atento S.A.)
Incurrence of Indebtedness. (a) The Company will Parent Guarantor shall not, and will shall not permit the Issuer or any of its Restricted Subsidiaries other Subsidiary to, Incur directly or indirectly, create, incur, assume or guaranty or otherwise become or remain directly or indirectly liable with respect to any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater other than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(i) (1) Indebtedness existing on the Closing Date (other than Indebtedness described in clauses (iv) and (v)), (2) Indebtedness incurred pursuant to the payment-in-kind of interest or additional amounts in respect thereof, to the extent the Parent Guarantor or any of its Subsidiaries is permitted to pay such payment-in-kind interest pursuant to the terms of such Indebtedness in effect as of the Closing Date (including PIK Superpriority Notes), (3) Indebtedness pursuant to the Convertible Debentures outstanding on the Closing Date, plus any increase in Indebtedness pursuant to the transactions contemplated by the Transaction Support Agreement; and (4) Indebtedness to be incurred pursuant to the issuance of the 1L Consent Exchangeable Notes and the Second Out Exchangeable Notes (including the payment-in-kind of interest or additional amounts in respect thereof in compliance with the terms of the Second Out Exchangeable Notes in effect on the issue date thereof);
(ii) Indebtedness arising from customary indemnification or other similar obligations under the Transaction Documents and the other agreements entered into on the Closing Date in connection therewith (or permitted replacements or amendments thereto that do not expand the scope of the obligations thereunder);
(iii) Indebtedness of the Company Issuer or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal owed to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y)Parent Guarantor, the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) Issuer or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or (x) any Indebtedness owed to any Subsidiary Guarantor that is not an obligor, the Indebtedness is Obligor (A) shall be subordinated in right of payment to the NotesSecured Obligations as contemplated by Section 10.01 and (B) shall not exceed an aggregate outstanding principal amount of US$1.0 million, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event which results in y) upon any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (being owed to any Person other than to the Company Parent Guarantor, the Issuer or any other Restricted Subsidiary) , the Parent Guarantor, the Issuer or such other Subsidiary, as applicable, shall be deemed, in each case, deemed to constitute an Incurrence of such have incurred Indebtedness not permitted by this clause (2)(Biii);; and
(3) the Notes to be issued on the Issue Date;
(4iv) Indebtedness outstanding from time to time under the credit agreement dated May 27, 2024 entered into between Azul Investments, as of borrower, and the Issue Date;
(5) Indebtedness issued in exchange forParent Guarantor and Azul Linhas, or the net proceeds of which are used to extendas guarantors, refinanceand Citibank, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that IndebtednessN.A., the proceeds of which are used for engine maintenance, and any refinancing thereof incurred in compliance with clauses (3) and (4) within the definition of Required Debt Terms in the maximum aggregate principal amount at any time outstanding not to Refinance Subordinated Indebtednessexceed US$210.0 million;
(v) Specified Debt; provided that (x)(I) the Specified Debt described in clause (i) of the definition of Specified Debt shall be unsecured and (II) Indebtedness described in clauses (ii) and (iii) of the definition of Specified Debt shall only be secured by Liens described in clause (15) of the definition of Permitted Liens, will be permitted (y) in respect of any Specified Debt incurred on or prior to July 1, 2026, (I) the aggregate principal amount of all Specified Debt outstanding shall not to exceed the Specified Debt Cap, (II) no Default or Event of Default has occurred, is continuing or would result therefrom and (z) solely with respect to Indebtedness described in clause (ii) of the definition of Specified Debt that does not constitute a Qualified Receivables Transaction or that is for working capital purposes and that is not secured by Credit and Debit Card Receivables, after July 1, 2026, on a pro forma basis, including after giving effect to such incurrence, the Total Leverage Ratio (calculated, for the purposes of this paragraph (v), excluding current and long-term leases (as determined in accordance with IFRS)) is equal to or less than 3.5 to 1.00;
(vi) Hedging Obligations; provided that such agreements (x) are entered into in the ordinary course of business solely to protect such Person against fluctuations in foreign currency exchange rates, interest rates, or commodity prices and (y) do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates, interest rates, or commodity prices or by reason of fees, indemnities and compensation payable thereunder;
(vii) Aircraft Financing;
(viii) Permitted Refinancing Indebtedness of Indebtedness incurred under clauses (i) (other than the Superpriority Notes, including any Indebtedness incurred pursuant to the payment-in-kind of interest or additional amounts in respect thereof and the Superiority Note Guarantees), (viii), (ix) or (xi) hereof;
(ix) on and after July 1, 2025, unsecured Indebtedness that (x) matures at least 91 days after the Maturity Date, (y) that does not have any scheduled amortization or mandatory prepayments of principal prior to the Maturity Date and (z) is not issued, borrowed or guaranteed by any Person who does not guarantee the Superpriority Notes; provided that on a pro forma basis, including after giving effect to such incurrence, the Total Leverage Ratio (calculated, for the purposes of this paragraph (ix), excluding current and long-term leases (as determined in accordance with IFRS)) is equal to or less than 3.5 to 1.00;
(x) Indebtedness incurred in connection with commercial letters of credit, bankers’ assurances or acceptances, surety bonds, insurance bonds and similar instruments entered into in the ordinary course of business (and reimbursement and backstop obligations in connection therewith) in an aggregate amount not to exceed US$800 million at any one time outstanding; provided that such Indebtedness under this clause (5x) may only if:be secured by Liens on cash and on assets other than the Collateral;
(Axi) such new Indebtedness, by its terms or by the terms Indebtedness of any agreement other Person existing at the time such other Person is acquired by an Azul Group Entity, including by way of a merger, amalgamation or instrument consolidation or becomes a Subsidiary of the Parent Guarantor in connection with any acquisition or Investment permitted pursuant to which Section 4.11; provided that (x) on a pro forma basis, after giving effect to such new Indebtedness is issued transaction or remains outstandingseries of related transactions, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new IndebtednessTotal Leverage Ratio, determined calculated as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity last day of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that Calculation Period most recently ended for which financial statements are available is not a Subsidiary Guarantor greater than 4.40 to 1.00 and (y) such Indebtedness was not incurred in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation;
(xii) Indebtedness incurred by Receivables Subsidiaries pursuant to Qualified Receivables Transactions; provided that the outstanding amount of Indebtedness incurred pursuant to this clause (5xii) does not exceed an amount equal to US$2.0 billion less the aggregate principal amount of Indebtedness described in clause (ii) of the definition of Specified Debt that is secured by Liens on Credit and Debit Card Receivables;
(xiii) Lessor Notes in an aggregate principal amount not to exceed U.S.$370,490,204 (being the outstanding aggregate principal amount on the Closing Date);
(xiv) to the extent constituting Indebtedness (1) Pre-paid Points Purchases (other than any Blocked Pre-paid Points Purchase), so long as (A) the aggregate amount of Points purchased or other Indebtedness incurred in connection with such Pre-paid Points Purchases (other than Blocked Pre-paid Points Purchases) during the same fiscal year does not exceed 8% of the Azul Fidelidade Gross Billings for the four most recently completed Quarterly Reporting Periods (the “Permitted Pre-paid Points Basket Amount”), (B) the net proceeds of such Pre-paid Points Purchases (other than a Blocked Pre-paid Points Purchase) are paid directly to the Azul Fidelidade Receivables Deposit Account, (C) such sale is non-refundable and non-recourse to the IP Parties, and (D) the Indebtedness related thereto (if any) is unsecured or secured by assets of the Parent Guarantor or its Subsidiaries (other than the IP Parties) that do not constitute Shared Collateral; and (2) any Blocked Pre-paid Points Purchase; and
(xv) Indebtedness of any Permitted Business Combination Entity; provided that (x) such Indebtedness complies with the Required Cross Group Conditions and (y) Permitted Business Combination Entities may only incur Indebtedness in reliance on this clause (xv).
(b) Notwithstanding any other provision of the Transaction Documents, Indebtedness incurred pursuant to the provision described above can be denominated in, and be payable in, any currency.
(c) For purposes of determining compliance with, and the outstanding principal amount of, any particular Indebtedness incurred pursuant to and in compliance with this covenant: (i) the outstanding principal amount of any item of Indebtedness (including any guarantees of Indebtedness) will be counted only once; and (ii) the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with IFRS.
(d) Notwithstanding any other provision of this covenant, no Obligor shall, with respect to any outstanding Indebtedness incurred, be deemed to be in violation of this covenant solely as a result of fluctuations in the exchange rates.
(e) 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 non-U.S. currency will be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred or, in the case of revolving credit Indebtedness, first committed.
Appears in 1 contract
Sources: Indenture (Azul Sa)
Incurrence of Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Total Net Debt to Adjusted Total Assets as of any date of IncurrenceRatio would exceed 0.65 to 1.00.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Senior Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Net Debt to Adjusted Total Assets as of any date of IncurrenceRatio would exceed 0.45 to 1.00.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis)1.0; provided that the amount of Indebtedness that may be Incurred by Restricted Subsidiaries that are not Subsidiary Guarantors shall not exceed the greater of $800.0 million and an amount equal to 8.0% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding .
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) the greater of $3,400.0 4,000.0 million and an amount equal to 40.0% of Adjusted Total Assets at any time outstanding, plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma Pro Forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing Refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;Refinancing;
(2) Indebtedness owed to:
(A) The the Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; note; or
(B) any other Restricted Subsidiary; Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);2)(B);
(3i) the Notes to be issued on the Issue Date, the 2027 Notes to be issued on the Issue Date, the 2030 Notes to be issued on the Issue Date, the Note Guarantees, the 2027 Note Guarantees and the 2030 Note Guarantees; and (ii) the Existing Senior Notes and related guarantees;
(4) Indebtedness outstanding as of the Issue DateDate (other than Indebtedness described in clause (1) above);
(5) the PropCo Notes and the Guarantees of the PropCo Notes;
(56) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund refund, other outstanding Indebtedness that was incurred under the provisions of paragraph (other than clauses (1a), (2b) or (c) of this covenant or clauses (3), (4), (5), (6), (9), (10), (11), (15), (18), (19) and or (1327) of this Section 4.08(d)) , in an amount not to exceed the amount so Refinanced plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; ” or a “Refinancing”); provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (56) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; , if applicable; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the earlier of (i) the Stated Maturity of the Subordinated Indebtedness to be Refinanced, or (ii) the date that is 91 days after the Stated Maturity of the Notes, and the Average Life of such new Indebtedness is at least equal to the earlier of (1) the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and , or (2) 91 days more than the Average Life of the Notes; provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (56);
(7) obligations (contingent or otherwise) existing or arising under any Hedging Obligations or Swap Contracts (including Secured Hedge Agreements) entered into for the purpose of mitigating risks associated with fluctuations in interest rates (including both fixed to floating and floating to fixed contracts), foreign exchange rates or commodity price fluctuations in a non-speculative manner;
(8) Indebtedness under Secured Cash Management Agreements and in respect of netting services, the Overdraft Line and otherwise in connection with deposit accounts, commercial credit cards, stored value cards, purchasing cards and treasury management services, including any obligations pursuant to Cash Management Agreements, and other netting services, overdraft protections, automated clearing-house arrangements, employee credit card programs, controlled disbursement, ACH transactions, return items, interstate depository network service, Society for Worldwide Interbank Financial Telecommunication transfers, cash pooling and operational foreign exchange management, and in each case, similar arrangements and otherwise in connection with cash management, including cash management arrangements among the Company and its Subsidiaries;
(9) (A) Finance Leases, synthetic lease obligations, purchase money obligations or mortgage financings Incurred after the Issue Date and (B) Indebtedness secured by purchase money Liens, in an aggregate outstanding principal amount for clauses (A) and (B) on a combined basis not to exceed the greater of $200.0 million and an amount equal to 2.0% of Adjusted Total Assets at any time outstanding; provided, however, that, subject to clause (g), any Refinancing Incurred under clause (6) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (9) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (9);
(10) Indebtedness of the Company, to the extent the net proceeds therefrom are promptly:
(A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change of Control; or
(B) deposited to defease or discharge the Notes as described in Articles 8 and 11 hereof;
(11) Indebtedness incurred in connection with any Sale and Leaseback Transaction;
(12) customer deposits and advance payments received from customers in the ordinary course of business;
(13) any Guarantee issued by the Company pursuant to the matters described in any indemnity agreements entered into for the benefit of a title company that has been engaged by the Company or any of its Restricted Subsidiaries;
(14) Guarantees by the Company or any Restricted Subsidiary of any Indebtedness of the Company or any Restricted Subsidiary; provided that such Indebtedness was permitted to be Incurred pursuant to this covenant other than under this clause (14); provided further that any such Guarantees by the Company or any Subsidiary Guarantor of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor is subordinated in right of payment to the obligations of the Company and the Subsidiary Guarantors under the Notes;
(15) Guarantees issued by the Company or any of its Restricted Subsidiaries of any Indebtedness of Joint Ventures or Unrestricted Subsidiaries in an amount not to exceed the greater of $200.0 million and 2.0% of Adjusted Total Assets at any time outstanding, if both before and after giving effect to the incurrence of each such Guarantee, no Default or Event of Default has occurred or is continuing, provided, however, that, subject to clause (g), any Refinancing Incurred under clause (6) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (15) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (15);
(16) Indebtedness of the Company or any of its Restricted Subsidiaries supported by a letter of credit issued under any Credit Facilities in an aggregate principal amount not to exceed the stated amount of such letter of credit (but which stated amount may include the amount of any anticipated premiums, expenses (including upfront fees and original issue discount) and any accretion in the principal amount thereof);
(17) contractual indemnity obligations entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of ownership or operation of their respective properties;
(18) Indebtedness (A) of a Person that becomes a Restricted Subsidiary after the Issue Date, that existed at the time such Person became a Restricted Subsidiary and was not created (but may have been amended) in anticipation or contemplation thereof, (B) Incurred to provide all or any portion of the funds utilized to acquire, or to consummate the transaction or series of related transactions in connection with or in contemplation of any acquisition of a Person that becomes a Restricted Subsidiary, (c) assumed in connection with an asset acquisition by the Company or a Restricted Subsidiary and (D) Incurred in connection with any Investment in a third party permitted under this Indenture, in each case under this clause (18), as long as immediately after giving effect thereto, either (i) the Interest Coverage Ratio on a Pro Forma Basis would be at least 2.0 to 1.0 or (ii) in the case of subclause (A) only, the Interest Coverage Ratio on a Pro Forma Basis would be greater than or equal to the actual Interest Coverage Ratio immediately prior to such acquisition, incurrence or assumption.
(19) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, together with any other Indebtedness incurred by such Restricted Subsidiaries pursuant to this covenant, in an amount not to exceed the greater of $800.0 million and an amount equal to 8.0% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding; provided, however, that, subject to clause (g), any Refinancing Incurred under clause (6) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (19) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (19);
Appears in 1 contract
Sources: Indenture (Vici Properties Inc.)
Incurrence of Indebtedness. (a) The Company will notNone of the Guarantors shall, and will the Company shall cause the Guarantors not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to (collectively, “incur”) any Indebtedness; provided, however, that notwithstanding the foregoing, any Guarantor may incur, so long as no Default or Event of Default has occurred and is continuing:
(1) Indebtedness ifrepresented by (i) the EchoStar Exchange Notes issued on the Issue Date, any PIK Notes issued under the EchoStar Exchange Notes Indenture, the Notes Guarantees thereof, the EchoStar Exchange Notes Indenture and the Security Documents, (ii) the New Senior Spectrum Secured Notes and the New Senior Spectrum Secured Convertible Notes, in each case, issued on the Issue Date, and (iii) the New Senior Spectrum Secured Convertible Notes issued as PIK Notes (as defined in the New Senior Spectrum Secured Convertible Notes Indenture) and, in each case, related guarantees;
(2) First Lien Indebtedness (other than the EchoStar Exchange Notes, New Senior Spectrum Secured Convertible Notes and New Senior Spectrum Secured Notes issued on the Issue Date); provided that (a)(w) immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromFirst Lien Indebtedness, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would First Lien LTV Ratio shall not be greater than 65% 0.375 to 1.00, (x) the aggregate amount of Adjusted Total Assets First Lien Indebtedness that may be incurred pursuant to this clause (2) after the Issue Date shall not exceed the Spectrum Value Debt Cap, (y) First Lien Indebtedness incurred under this clause (2) cannot be incurred prior to the completion of the Initial Appraisal pursuant to Section 4.18 and (z) First Lien Indebtedness incurred under this clause (2) cannot be guaranteed by any Subsidiary that is not a Guarantor or secured by any assets other than the Collateral; and (b) unless such First Lien Indebtedness is in the form of EchoStar Exchange Notes, New Senior Spectrum Secured Convertible Notes or the New Senior Spectrum Secured Notes, issued under the EchoStar Exchange Notes Indenture, the New Senior Spectrum Secured Convertible Notes Indenture and the New Senior Spectrum Secured Notes Indenture, respectively, the Authorized Representative for such First Lien Indebtedness shall have entered into the First Lien Intercreditor Agreement as a First Lien Representative;
(3) Indebtedness; provided that (a) immediately after giving effect to such Indebtedness, the LTV Ratio shall not be greater than 0.60 to 1.00, (b) Indebtedness incurred under this clause (3) cannot be incurred prior to the completion of the Initial Appraisal pursuant to Section 4.18; (c) Indebtedness incurred under this clause (3) cannot be guaranteed by any Subsidiary that is not a Guarantor or secured by any assets other than the Collateral; (d) Indebtedness incurred under this clause (3) cannot have a maturity date earlier than one year following the occurrence of the maturity date of the EchoStar Exchange Notes; (e) the terms of any date Indebtedness incurred under this clause (3) cannot provide for (x) any scheduled repayment, mandatory repayment or redemption (other than in connection with a change of Incurrencecontrol offer) so long as any EchoStar Exchange Notes remain outstanding and (y) no cash interest shall be paid on such Indebtedness for any period if the Company has elected to pay PIK Interest for the most recently ended interest payment period; (f) the covenants and events of default applicable to any Indebtedness incurred under this clause (3) shall be no more restrictive than those applicable to the EchoStar Exchange Notes; and (g) if such Indebtedness is secured by a Lien on any Collateral, the Authorized Representative for such Second Lien Indebtedness shall have entered into the Second Lien Intercreditor Agreement as a Second Lien Representative;
(4) Indebtedness between and among the Guarantors; provided that any such intercompany debt shall be pledged on a first lien basis in favor of the Collateral Agent for its benefit and the benefit of the Trustee and the Holders pursuant to the Security Documents (it being understood that the Security Documents shall be amended as necessary to provide for the pledge of debt as collateral and in any event, shall be in a form satisfactory to the Required Holders and the Collateral Agent); and
(5) the guarantee by any Guarantor of Indebtedness of a Guarantor that was permitted to be incurred by another provision of this Section 4.08.
(b) The Company will notFor purposes of determining compliance with this Section 4.08, in the event that an item of Indebtedness meets the criteria of more than one clause in the paragraph above, such Indebtedness may be divided, classified or reclassified at the time of incurrence thereof or at any later time (in whole or in part) in any manner that complies with this Section 4.08 and will not permit any such item of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness may be incurred partially under one clause and partially under one or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrencemore other clauses.
(c) The Company will not, and will not permit any principal amount of its Restricted Subsidiaries to, Incur any Indebtedness if, outstanding under any clause of this covenant will be determined after giving effect to the Incurrence application of proceeds of any such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis)refinance any such other Indebtedness.
(d) The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms will not be deemed to be an incurrence of Indebtedness for purposes of this Section 4.08. Notwithstanding clauses (a), (b) and (c) any other provision of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal maximum amount of any outstanding Incremental Term Loans (provided Indebtedness that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor incur pursuant to this clause (5);Section 4.08 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.
Appears in 1 contract
Sources: Echostar Exchange Notes Indenture (SNR Wireless LicenseCo, LLC)
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries todirectly or indirectly, Incur any Subsidiary Indebtedness or any Secured Indebtedness ifIndebtedness; provided, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefromhowever, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, that the Company or any of its Restricted Subsidiaries may Incur each and all Indebtedness if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is Incurred would have been at least 2.0 to 1, determined on a pro forma basis (including a pro forma application of the following:net proceeds therefrom), as if the additional Indebtedness had been Incurred at the beginning of such four-quarter period.
(1b) Section 4.09(a) shall not prohibit the Incurrence of any of the following items of Indebtedness of (collectively, “Permitted Debt”):
(i) the Incurrence by the Company or any of the Subsidiary Guarantors outstanding its Restricted Subsidiaries of Indebtedness under Credit Facilities (and the issuance or creation Incurrence of letters of credit and bankers’ acceptances thereunder or Guarantees thereof) in connection therewith an aggregate principal amount at any one time outstanding pursuant to this clause (i) (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum maximum potential liability of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs thereunder) not to exceed the greater of (ax) $750.0 million, and (by) abovethe Borrowing Base on such date of Incurrence;
(ii) plus the Incurrence of Existing Indebtedness;
(2iii) the Incurrence by the Company and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the Issue Date;
(iv) the Incurrence by the Company or any Restricted Subsidiary thereof 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 case business of any refinancing 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 permitted under Incurred pursuant to this clause (1iv), not to exceed at any time outstanding the greater of (x) or any portion thereof, $40.0 million and (y) 7.5% of the aggregate amount Company’s Consolidated Net Tangible Assets on such date of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancingIncurrence;
(2v) the Incurrence by the Company or any Restricted Subsidiary of the Company of Permitted Refinancing Indebtedness owed toin 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 Section 4.09(a) or clauses (ii), (iii), (iv), (v), or (xv) 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:
(A1) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligorthe obligor on such Indebtedness, such Indebtedness must be unsecured and expressly subordinated to the Indebtedness is subordinated prior payment in right full in cash of payment all Obligations with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor Guarantor;
(except to the extent prohibited by applicable Gaming Law); and provided further that any event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such 2) Indebtedness (other than 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;
(3) (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 SubsidiarySubsidiary thereof and (B) 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 (2)(BSection 4.09(b)(vi);
(3vii) the Notes Guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be issued on the Issue DateIncurred by another provision of this Section 4.09;
(4viii) the Incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations that are Incurred for the purpose of fixing, hedging or swapping interest rate, commodity price or foreign currency exchange rate risk (or to reverse or amend any such agreements previously made for such purposes), and not for speculative purposes, and that do not increase the Indebtedness outstanding as of the Issue Dateobligor outstanding at any time other than as a result of fluctuations in interest rates, commodity prices or foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder;
(5ix) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange forarising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the net proceeds Company or any of which are used its Restricted Subsidiaries pursuant to extendsuch agreements, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses in any case Incurred in connection with the disposition of any business, assets or Capital Stock of any Restricted Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such refinancing (any business, assets or Capital Stock of such action, to “Refinance”Restricted Subsidiary for the purpose of financing such acquisition), so long as the principal amount does not exceed the gross proceeds actually received by the Company or any Restricted Subsidiary thereof in connection with such disposition;
(x) 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 drawn against insufficient funds in the ordinary course of business, provided, however, that such Indebtedness is extinguished within five Business Days of its Incurrence;
(xi) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit in respect of workers’ compensation claims or self-insurance obligations or bid, performance or surety bonds (in each case other than for an obligation for borrowed money);
(xii) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business; provided 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;
(xiii) the Incurrence by the Company of Indebtedness to the extent that the net proceeds thereof are promptly deposited to defease or to satisfy and discharge the Notes;
(xiv) the incurrence of any Indebtedness by a Receivables Subsidiary that is not recourse to the Company or any other Restricted Subsidiary of the Company (other than Standard Securitization Undertakings) incurred in connection with a Qualified Receivables Transaction; or
(xv) 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 Section 4.09(b)(xv), not to exceed the amount so Refinanced; provided greater of (x) $40.0 million and (y) 7.5% of the Company’s Consolidated Net Tangible Assets on such date of Incurrence. For purposes of determining compliance with this Section 4.09, in the event that Indebtednessany proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in Section 4.09(b)(i) through (xv) above, or is entitled to be Incurred pursuant to Section 4.09(a) above, the proceeds of which are used to Refinance Subordinated Indebtedness, Company will be permitted to classify such item of Indebtedness at the time of its Incurrence in any manner that complies with this covenant. In addition, any Indebtedness originally classified as Incurred pursuant to Section 4.09(b)(i) through (xv) 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 at the time of such reclassification. Notwithstanding the foregoing, Indebtedness under this clause (5the Credit Agreement outstanding on the Issue Date shall be deemed to have been Incurred on such date in reliance on the exception provided by Section 4.09(b)(i) only if:above.
(Ac) such new IndebtednessNotwithstanding any other provision of Section 4.09, by its terms or by the terms maximum amount of any agreement or instrument Indebtedness that may be Incurred pursuant to which such new 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 issued or remains outstanding, subordinate in right of payment to any other Indebtedness of the Company unless it is expressly made subordinate in right of payment to the Notes at least to the same extent and no Guarantor shall Incur any Indebtedness that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or any other Indebtedness of such Subsidiary Guarantor unless it is subordinate in right of payment to such Guarantor’s Note GuaranteeGuarantee to the same extent; provided that no Indebtedness shall be deemed to be subordinated in right of payment to any other Indebtedness of the Company or any Guarantor, as applicable, be Refinanced solely by means reason of any Indebtedness Liens or Guarantees arising or created in respect thereof or by virtue of the fact that the holders of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);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: Indenture (Caleres Inc)
Incurrence of Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount ratio of all outstanding consolidated Indebtedness of the Company and its the Restricted Subsidiaries on a consolidated basis would be greater than 65% of to Adjusted Total Assets as of any date of Incurrencewould exceed 0.65 to 1.00.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount ratio of all outstanding Subsidiary Indebtedness and consolidated Secured Indebtedness of the Company and its the Restricted Subsidiaries on a consolidated basis would be greater than 45% of to Adjusted Total Assets as of any date of Incurrencewould exceed 0.40 to 1.00.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 1.50 to 1.0 1.0; provided that for purposes of calculating the Interest Coverage Ratio pursuant to this clause (c), for each of the first four (4) full Fiscal Quarters commencing with the Fiscal Quarter beginning on April 1, 2020, Consolidated EBITDA for any such Fiscal Quarter shall be calculated on a Pro Forma Basis)as the greater of (x) Consolidated EBITDA in such Fiscal Quarter and (y) zero; provided, further that, for so long as any Subsidiary of the Company Guarantees the Notes, the amount of additional Indebtedness that may be Incurred from and after the Issue Date by Restricted Subsidiaries that are not Subsidiary Guarantors under this clause (c) shall not exceed the greater of $900.0 million and an amount equal to 7.0% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding.
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) the greater of $3,400.0 4,000.0 million plus (y) the aggregate principal and an amount equal to 30.0% of Adjusted Total Assets at any time outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing Refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancingRefinancing;
(2) Indebtedness owed to:
(A) The Company an Issuer or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company an Issuer or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the CompanyIssuers, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law)Guarantor; and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue DateDate and the Note Guarantees;
(4) Indebtedness outstanding as of the Issue DateDate (including the 2025 Senior Secured Notes, but excluding Indebtedness described in clause (1) above);
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund refund, other outstanding Indebtedness that was incurred under the provisions of paragraph (other than clauses (1a), (2b) or (c) of this covenant or clauses (3), (64), (5), (8), (9), (10), (1114), (17), (18), (24), (25) and or (1327) of this Section 4.08(d)) , in an amount not to exceed the amount so Refinanced plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums premiums, customary reserves required to be funded and maintained in connection with such Indebtedness and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance” or a “Refinancing”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, Indebtedness will be permitted under this clause (5) only if:if (except in the case of COVID-19 Relief Funds and Refinancings thereof):
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes, if applicable; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the earlier of (i) the Stated Maturity of the Subordinated Indebtedness to be Refinanced, or (ii) the date that is 91 days after the Stated Maturity of the Notes, and the Average Life of such new Indebtedness is at least equal to the earlier of (1) the remaining Average Life of the Subordinated Indebtedness to be Refinanced, or (2) 91 days more than the Average Life of the Notes; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);
(6) (i) obligations (contingent or otherwise) existing or arising under any Hedging Obligations or Swap Contracts (including Secured Hedge Agreements) entered into for the purpose of mitigating risks associated with fluctuations in interest rates (including both fixed to floating and floating to fixed contracts), foreign exchange rates or commodity price fluctuations in a non-speculative manner and (ii) Indebtedness consisting of any Permitted Bond Hedge Transaction or any Permitted Warrant Transaction;
(7) Indebtedness under Secured Cash Management Agreements, cash pooling agreements with hotel management companies and in respect of netting services, the Overdraft Line and otherwise in connection with deposit accounts, commercial credit cards, stored value cards, purchasing cards and treasury management services, including any obligations pursuant to Cash Management Agreements, and other netting services, overdraft protections, automated clearing-house arrangements, employee credit card programs, controlled disbursement, ACH transactions, return items, interstate depository network service, Society for Worldwide Interbank Financial Telecommunication transfers, cash pooling and operational foreign exchange management, and in each case, similar arrangements and otherwise in connection with cash management, including cash management arrangements among the Company and its Subsidiaries;
(8) (A) Finance Leases, synthetic lease obligations, purchase money obligations or mortgage financings Incurred after the Issue Date and (B) Indebtedness secured by purchase money Liens, in an aggregate outstanding principal amount for clauses (A) and (B) on a combined basis Incurred from and after the Issue Date not to exceed the greater of $350.0 million and an amount equal to 2.5% of Adjusted Total Assets at any time outstanding; provided, however, that, subject to clause (g), any Refinancing Incurred under clause (5) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (8) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (8);
(9) Indebtedness of the Company, to the extent the net proceeds therefrom are promptly:
(A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change of Control Triggering Event; or
(B) deposited to defease or discharge the Notes as described in Articles 8 and 11 hereof;
(10) Indebtedness incurred in connection with any Sale and Leaseback Transaction;
(11) customer deposits and advance payments received from customers in the ordinary course of business;
(12) any Guarantee issued by the Company pursuant to the matters described in any indemnity agreements entered into for the benefit of a title company that has been engaged by the Company or any of its Restricted Subsidiaries;
(13) Guarantees by the Company or any Restricted Subsidiary of any Indebtedness of the Company or any Restricted Subsidiary; provided that such Indebtedness was permitted to be Incurred pursuant to this covenant other than under this clause (13); provided further that any such Guarantees by an Issuer or any Subsidiary Guarantor of any Indebtedness of any Restricted Subsidiary that is not an Issuer or a Subsidiary Guarantor is subordinated in right of payment to the obligations of the Issuers and the Subsidiary Guarantors under the Notes;
(14) Guarantees issued by the Company or any of its Restricted Subsidiaries of any Indebtedness of Joint Ventures or Unrestricted Subsidiaries Incurred from and after the Issue Date in an amount not to exceed the greater of $250.0 million and 2.0% of Adjusted Total Assets at any time outstanding, if both before and after giving effect to the incurrence of each such Guarantee, no Default or Event of Default has occurred or is continuing; provided, however, that, subject to clause (g), any Refinancing Incurred under clause (5) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (14) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (14);
(15) Indebtedness of the Company or any of its Restricted Subsidiaries supported by a letter of credit issued under any Credit Facilities in an aggregate principal amount not to exceed the stated amount of such letter of credit (but which stated amount may include the amount of any anticipated premiums, expenses (including upfront fees and original issue discount) and any accretion in the principal amount thereof);
(16) contractual indemnity obligations entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of ownership or operation of their respective Properties;
(17) Indebtedness (A) of a Person outstanding on the date of any acquisition of such Person, including through the acquisition of a Person that becomes a Restricted Subsidiary or is acquired by, or merged or consolidated with or into, the Company or any Restricted Subsidiary, or that is assumed by the Company or any Restricted Subsidiary in connection with any such acquisition (other than Indebtedness incurred by such Person in connection with, or contemplation of, such acquisition, merger or consolidation), (B) Incurred to provide all or any portion of the funds utilized to acquire, or to consummate the transaction or series of related transactions in connection with or in contemplation of any acquisition, of a Person that becomes a Restricted Subsidiary, (C) assumed in connection with an asset acquisition by the Company or a Restricted Subsidiary or (D) Incurred in connection with any Investment in a third party permitted under this Indenture, in each case under this clause (17), as long as immediately after giving effect thereto, either (i) the Interest Coverage Ratio on a Pro Forma Basis would be at least 1.50 to 1.0 or (ii) the Interest Coverage Ratio on a Pro Forma Basis would be greater than or equal to the actual Interest Coverage Ratio immediately prior to such acquisition, incurrence or assumption, in each case under this clause (17), with the Interest Coverage Ratio calculated in accordance with clause (c) above;
(18) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, together with any other Indebtedness Incurred from and after the Issue Date pursuant to this clause (18) or clause (c) above by such Restricted Subsidiaries, in an amount not to exceed the greater of $900.0 million and an amount equal to 7.0% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding; provided, however, that, subject to clause (g), any Refinancing Incurred under clause (5) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (18) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (18);
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company will Parent Guarantor shall not, and will shall not permit the Issuer or any of its Restricted Subsidiaries other Subsidiary to, Incur directly or indirectly, create, incur, assume or guaranty or otherwise become or remain directly or indirectly liable with respect to any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater other than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(i) (1) Indebtedness existing on the Closing Date (other than Indebtedness described in clauses (iv) and (v)), (2) Indebtedness incurred pursuant to the payment-in-kind of interest or additional amounts in respect thereof, to the extent the Parent Guarantor or any of its Subsidiaries is permitted to pay such payment-in-kind interest pursuant to the terms of such Indebtedness in effect as of the Closing Date (including PIK Superpriority Notes (as defined in the Intercreditor Agreement)), (3) Indebtedness pursuant to the Convertible Debentures outstanding on the Closing Date, plus any increase in Indebtedness pursuant to the transactions contemplated by the Transaction Support Agreement; and (4) Indebtedness to be incurred pursuant to the issuance of the 1L Consent Exchangeable Notes and the Second Out Exchangeable Notes (including the payment-in-kind of interest or additional amounts in respect thereof in compliance with the terms of the Second Out Exchangeable Notes in effect on the issue date thereof);
(ii) Indebtedness arising from customary indemnification or other similar obligations under the Transaction Documents and the other agreements entered into on the Closing Date in connection therewith (or permitted replacements or amendments thereto that do not expand the scope of the obligations thereunder);
(iii) Indebtedness of the Company Issuer or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal owed to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y)Parent Guarantor, the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) Issuer or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or (x) any Indebtedness owed to any Subsidiary Guarantor that is not an obligor, the Indebtedness is Obligor (A) shall be subordinated in right of payment to the NotesSecured Obligations as contemplated by Section 10.01 and (B) shall not exceed an aggregate outstanding principal amount of US$1.0 million, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event which results in y) upon any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (being owed to any Person other than to the Company Parent Guarantor, the Issuer or any other Restricted Subsidiary) , the Parent Guarantor, the Issuer or such other Subsidiary, as applicable, shall be deemed, in each case, deemed to constitute an Incurrence of such have incurred Indebtedness not permitted by this clause (2)(Biii);; and
(3) the Notes to be issued on the Issue Date;
(4iv) Indebtedness outstanding from time to time under the credit agreement dated May 27, 2024 entered into between Azul Investments, as of borrower, and the Issue Date;
(5) Indebtedness issued in exchange forParent Guarantor and Azul Linhas, or the net proceeds of which are used to extendas guarantors, refinanceand Citibank, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that IndebtednessN.A., the proceeds of which are used for engine maintenance, and any refinancing thereof incurred in compliance with clauses (3) and (4) within the definition of Required Debt Terms in the maximum aggregate principal amount at any time outstanding not to Refinance Subordinated Indebtednessexceed US$210.0 million;
(v) Specified Debt; provided that (x)(I) the Specified Debt described in clause (i) of the definition of Specified Debt shall be unsecured and (II) Indebtedness described in clauses (ii) and (iii) of the definition of Specified Debt shall only be secured by ▇▇▇▇▇ described in clause (15) of the definition of Permitted Liens, will be permitted (y) in respect of any Specified Debt incurred on or prior to July 1, 2026, (I) the aggregate principal amount of all Specified Debt outstanding shall not to exceed the Specified Debt Cap, (II) no Default or Event of Default has occurred, is continuing or would result therefrom and (z) solely with respect to Indebtedness described in clause (ii) of the definition of Specified Debt that does not constitute Qualified Receivables Transaction or that is for working capital purposes and that is not secured by Credit and Debit Card Receivables, after July 1, 2026, on a pro forma basis, including after giving effect to such incurrence, the Total Leverage Ratio (calculated, for the purposes of this paragraph (v), excluding current and long-term leases (as determined in accordance with IFRS)) is equal to or less than 3.5 to 1.00;
(vi) Hedging Obligations; provided that such agreements (x) are entered into in the ordinary course of business solely to protect such Person against fluctuations in foreign currency exchange rates, interest rates, or commodity prices and (y) do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates, interest rates, or commodity prices or by reason of fees, indemnities and compensation payable thereunder;
(vii) Aircraft Financing;
(viii) Permitted Refinancing Indebtedness of Indebtedness incurred under clauses (i), (viii), (ix) or (xi) hereof;
(ix) on and after July 1, 2025, unsecured Indebtedness that (x) matures at least 91 days after the Maturity Date, (y) that does not have any scheduled amortization or mandatory prepayments of principal prior to the Maturity Date and (z) is not issued, borrowed or guaranteed by any Person who does not guarantee the New 2030 Second Out Notes; provided that on a pro forma basis, including after giving effect to such incurrence, the Total Leverage Ratio (calculated, for the purposes of this paragraph (ix), excluding current and long-term leases (as determined in accordance with IFRS)) is equal to or less than 3.5 to 1.00;
(x) Indebtedness incurred in connection with commercial letters of credit, bankers’ assurances or acceptances, surety bonds, insurance bonds and similar instruments entered into in the ordinary course of business (and reimbursement and backstop obligations in connection therewith) in an aggregate amount not to exceed US$800 million at any one time outstanding; provided that such Indebtedness under this clause (5x) may only if:be secured by Liens on cash and on assets other than the Shared Collateral;
(Axi) such new Indebtedness, by its terms or by the terms Indebtedness of any agreement other Person existing at the time such other Person is acquired by an Azul Group Entity, including by way of a merger, amalgamation or instrument consolidation or becomes a Subsidiary of the Parent Guarantor in connection with any acquisition or Investment permitted pursuant to which Section 4.11; provided that (x) on a pro forma basis, after giving effect to such new Indebtedness is issued transaction or remains outstandingseries of related transactions, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new IndebtednessTotal Leverage Ratio, determined calculated as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity last day of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that Calculation Period most recently ended for which financial statements are available is not a Subsidiary Guarantor greater than 4.40 to 1.00 and (y) such Indebtedness was not incurred in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation;
(xii) Indebtedness incurred by Receivables Subsidiaries pursuant to Qualified Receivables Transactions; provided that the outstanding amount of Indebtedness incurred pursuant to this clause (5xii) does not exceed an amount equal to US$2.0 billion less the aggregate principal amount of Indebtedness described in clause (ii) of the definition of Specified Debt that is secured by Liens on Credit and Debit Card Receivables;
(xiii) Lessor Notes in an aggregate principal amount not to exceed U.S.$370,490,204 (being the outstanding aggregate principal amount on the Closing Date);
(xiv) to the extent constituting Indebtedness (1) Pre-paid Points Purchases (other than any Blocked Pre-paid Points Purchase), so long as (A) the aggregate amount of Points purchased or other Indebtedness incurred in connection with such Pre-paid Points Purchases (other than Blocked Pre-paid Points Purchases) during the same fiscal year does not exceed 8% of the Azul Fidelidade Gross ▇▇▇▇▇▇▇▇ for the four most recently completed Quarterly Reporting Periods (the “Permitted Pre-paid Points Basket Amount”), (B) the net proceeds of such Pre-paid Points Purchases (other than a Blocked Pre-paid Points Purchase) are paid directly to the Azul Fidelidade Receivables Deposit Account, (C) such sale is non-refundable and non-recourse to the IP Parties, and (D) the Indebtedness related thereto (if any) is unsecured or secured by assets of the Parent Guarantor or its Subsidiaries (other than the IP Parties) that do not constitute Shared Collateral; and (2) any Blocked Pre-paid Points Purchase; and
(xv) Indebtedness of any Permitted Business Combination Entity; provided that (x) such Indebtedness complies with the Required Cross Group Conditions and (y) Permitted Business Combination Entities may only incur Indebtedness in reliance on this clause (xv).
Appears in 1 contract
Sources: Indenture (Azul Sa)
Incurrence of Indebtedness. (a) The Company Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, incur, directly or indirectly, any Indebtedness; provided that the Issuer or any Guarantor may incur Indebtedness if, immediately after giving effect to such incurrence, the Consolidated Coverage Ratio is at least 2.0 to 1.0 determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, and the application of proceeds therefrom, had occurred at the beginning of such four-quarter period (this proviso, the “Coverage Ratio Exception”).
(b) Section 4.07(a) will not prohibit incurrence of the following Indebtedness (collectively, “Permitted Indebtedness”):
(1) the Notes issued on the Issue Date and any related Guarantees;
(2) Indebtedness of the Issuer or any Restricted Subsidiary to the extent outstanding on the Issue Date (other than Indebtedness under clauses (1) and (3) of this Section 4.07(b));
(3) Indebtedness of the Issuer or any Restricted Subsidiary under Credit Facilities in an aggregate amount at any time outstanding pursuant to this clause (3) not to exceed the greater of:
(A) $350.0 million; and
(B) 30% of the net book value of the accounts receivable of the Issuer and the Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP and calculated on a pro forma basis to give effect to any acquisitions or dispositions of assets made in connection with any transaction on the date of calculation;
(4) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to the Coverage Ratio Exception, clause (1) of this Section 4.07(b), clause (2) of this Section 4.07(b) (other than any Indebtedness owed to the Issuer or any of its Subsidiaries), this clause (4), clause (13) of this Section 4.07(b) or clause (20) of this Section 4.07(b);
(5) Indebtedness owed by the Issuer or any Restricted Subsidiary to the Issuer or a Restricted Subsidiary; provided that
(A) any such Indebtedness owed by the Issuer shall be subordinated by its terms to the prior payment in full in cash of all Obligations with respect to the Notes, and any such Indebtedness owed by any Guarantor (other than to the Issuer or any other Guarantor) shall be subordinated by its terms to the prior payment in full in cash of all Obligations with respect to the Guarantee of such Guarantor; and
(B) if such Indebtedness is held by a Person other than the Issuer or a Restricted Subsidiary, the Issuer or such Restricted Subsidiary shall be deemed to have incurred Indebtedness not permitted by this clause (5);
(6) (x) the guarantee by the Issuer or any Guarantor of Indebtedness of the Issuer or a Guarantor and (y) the guarantee by any Restricted Subsidiary that is not a Guarantor of Indebtedness of any other Restricted Subsidiary that is not a Guarantor; provided that, in each case, the Indebtedness being guaranteed is incurred pursuant to the Coverage Ratio Exception or is Permitted Indebtedness;
(7) Hedging Obligations;
(8) Purchase Money Indebtedness and Capital Lease Obligations of the Issuer or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any assets (including capital expenditures of the Issuer or any Restricted Subsidiary), and Refinancings thereof, in an aggregate amount at any time outstanding pursuant to this clause (8) not to exceed the greater of (x) $125.0 million and (y) 15.0% of Consolidated Net Tangible Assets;
(9) Indebtedness of any Foreign Subsidiary in an aggregate amount not to exceed at any time outstanding pursuant to this clause (9) not to exceed $75.0 million;
(10) Indebtedness of the Issuer or any of its Restricted Subsidiaries represented by worker’s compensation claims and other statutory or regulatory obligations, self-insurance obligations, tender, bid, performance, government contract, surety or appeal bonds, standby letters of credit and warranty and contractual service obligations of like nature, trade letters of credit or do- cumentary letters of credit, in each case to the extent incurred in the ordinary course of business of the Issuer or such Restricted Subsidiary;
(11) customary indemnification, adjustment of purchase price or similar obligations, in each case, incurred in connection with the acquisition or disposition of any assets of the Issuer or any Restricted Subsidiary (other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such assets for the purpose of financing such acquisition);
(12) obligations in respect of performance bonds and completion, guarantee, surety and similar bonds in the ordinary course of business;
(13) Acquired Indebtedness; provided that after giving effect to such acquisition or merger, either
(A) the Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or
(B) the Consolidated Coverage Ratio of the Issuer and the Restricted Subsidiaries is equal to or greater than immediately prior to such acquisition or merger;
(14) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(15) Indebtedness consisting of Guarantees incurred in the ordinary course of business under repurchase agreements or similar agreements in connection with the financing of sales of goods in the ordinary course of business;
(16) Indebtedness under surety bonds obtained in connection with the Construction Business;
(17) Indebtedness owing by the Issuer to CIS consisting of all or any portion of the proceeds of any payments made by the Issuer or Permitted Insureds to CIS as premiums for the insurance policies issued by CIS to the Issuer or such Permitted Insureds, respectively;
(18) additional Indebtedness in an aggregate principal amount not to exceed $75.0 million at any time outstanding pursuant to this clause (18);
(19) Indebtedness incurred to finance insurance premiums not to exceed $25.0 million aggregate outstanding at any time;
(20) Contribution Indebtedness;
(21) Indebtedness from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within 10 business days of its incurrence; and
(22) the incurrence of Indebtedness by Unrestricted Subsidiaries.
(c) For purposes of determining compliance with this Section 4.07, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (1) through (22) above or is entitled to be incurred pursuant to the Coverage Ratio Exception, the Issuer shall, in its sole discretion, classify such item of Indebtedness and may divide and classify such Indebtedness in more than one of the types of Indebtedness described and may later reclassify such item into any one or more of the categories of Indebtedness described above and such Indebtedness will be deemed to be incurred under the category into which it was last reclassified (provided that at the time of reclassification it meets the criteria in such category or categories; provided further that Indebtedness under clause (i) of the definition of “Credit Facilities” outstanding on the Issue Date will be deemed to have been incurred in reliance on clause (3) above). The maximum amount of Indebtedness that the Issuer or any Restricted Subsidiary may incur pursuant to this covenant will not be deemed to be exceeded solely as the result of fluctuations in the exchange rates of currencies. In determining the amount of Indebtedness incurred or outstanding, the principal amount of any particular Indebtedness of any Person shall be counted only once and any obligation of such Person or any other Person arising under any guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness shall be disregarded so long as such other Person could have incurred such obligation hereunder.
(d) Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, of the same class will not be deemed to be an incurrence of Indebtedness, Disqualified Stock or Preferred Stock.
(e) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness incurred pursuant to and in compliance with, this Section 4.07, any other obligation of the obligor on such Indebtedness (or of any other Person who could have incurred such Indebtedness under this section) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness.
(f) Notwithstanding the provisions of clauses (a) through (e) of this Section 4.07, the Issuer will not, and will not permit any of its Restricted Subsidiaries other Guarantor to, Incur incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event which results in any such Restricted Subsidiary ceasing purports to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms (or by the terms of any agreement or instrument pursuant to which governing such new Indebtedness is issued or remains outstanding, is expressly made subordinate Indebtedness) subordinated in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may any other Indebtedness of the Company Issuer or a Subsidiary Guarantor that ranks equally with or subordinate of such other Guarantor, as the case may be, unless such Indebtedness is also by its terms made subordinated in right of payment to the Notes or the Guarantee of such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means to at least the same extent as such Indebtedness is subordinated in right of any payment to such other Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);the Issuer or such Guarantor, as the case may be.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, Incur any Indebtedness ifIndebtedness; provided, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromhowever, the aggregate principal amount of all outstanding Indebtedness of that the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit or any of its Restricted Subsidiaries tomay Incur Indebtedness, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Company’s Consolidated Leverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 3.75 to 1.0 (calculated on a Pro Forma Basis)1; provided, further, that any Restricted Subsidiaries that are not Subsidiary Guarantors may not Incur Indebtedness pursuant to this paragraph if, after giving pro forma effect to such Incurrence, an aggregate principal amount of greater than $150.0 million of Indebtedness of Restricted Subsidiaries that are not Subsidiary Guarantors Incurred pursuant to this paragraph is outstanding, including all Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any such Indebtedness of Restricted Subsidiaries that are not Subsidiary Guarantors Incurred pursuant to this paragraph.
(d) Notwithstanding clauses (a), (b) and Section 4.09(a) shall not prohibit the Incurrence of any of the following items of Indebtedness (ccollectively, “Permitted Debt”):
(i) of this Section 4.08, the Incurrence by the Company or any Subsidiary Guarantor of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y)i) not to exceed $925.0 million, the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, less the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with all Net Proceeds of Asset Sales applied by the Company or any Subsidiary Guarantor thereof to permanently repay any such refinancingIndebtedness pursuant to Section 4.10;
(2ii) Existing Indebtedness;
(iii) the Incurrence by the Company and the Subsidiary Guarantors of Indebtedness owed torepresented by the Notes to be issued on the Issue Date and the related Subsidiary Guarantees;
(iv) the Incurrence by the Company or any Restricted Subsidiary thereof 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 (real or personal), plant or equipment used in the business of the Company or such Restricted Subsidiary (whether through the direct acquisition of such assets or the acquisition of Equity Interests of any Person owning such assets), in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred pursuant to this clause (iv), not to exceed the greater of (x) 4.0% of Tangible Assets at the time of Incurrence and (y) $75.0 million;
(v) the Incurrence by the Company or any Restricted Subsidiary thereof 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 Section 4.09(a) or clauses (ii), (iii), (iv), (v), (xvi) or (xvii) 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) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the obligor on such Indebtedness and such Indebtedness is owed to a Restricted Subsidiary that is not a Subsidiary Guarantor, such Indebtedness must be unsecured and expressly subordinated to the prior payment in right full in cash of payment all Obligations with respect to the Notes, in the case of the Company, or any Guarantee of the Note GuaranteeNotes, in the case of a Subsidiary Guarantor Guarantor; and
(except to the extent prohibited by applicable Gaming Law); and provided further 1) any subsequent issuance or transfer of Equity Interests that any event which results in any such Restricted Subsidiary ceasing to be Indebtedness being held by a Person other than the Company or a Restricted Subsidiary thereof and (2) any sale or any subsequent other transfer of any such Indebtedness (other than to a Person that is not either the Company or any other a Restricted Subsidiary) 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 (2)(BSection 4.09(b)(vi);
(3vii) the Notes Guarantee by the Company or any of its Restricted Subsidiaries of (1) Indebtedness of the Company or a Restricted Subsidiary thereof that was permitted to be issued on Incurred by another provision of this Section 4.09 or (2) leases (other than Capitalized Leases) or of other obligations which do not constitute Indebtedness and which are otherwise permitted under the Issue DateIndenture;
(4viii) Indebtedness outstanding as the Incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations that are Incurred for the Issue Datepurpose of fixing, hedging or swapping interest rate, commodity price or foreign currency exchange rate risk (or to reverse or amend any such agreements previously made for such purposes), and not for speculative purposes;
(5ix) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange forarising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the net proceeds Company or any of which are used its Restricted Subsidiaries pursuant to extendsuch agreements, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses in any case Incurred in connection with the acquisition or disposition of any business, assets or Restricted Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring or selling all or any portion of such refinancing business, assets or Restricted Subsidiary for the purpose of financing such acquisition);
(x) 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 drawn against insufficient funds in the ordinary course of business; provided, however, that such actionIndebtedness is extinguished within five Business Days of its Incurrence;
(xi) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of performance, bid, appeal, stay, customs and surety bonds, performance and completion guarantees, bank guarantees, bankers’ acceptances, including in respect of self-insurance, workers’ compensation claims or other Indebtedness with respect to “Refinance”reimbursement-type obligations regarding workers’ compensation claims, deferred compensation, severance, pension and health and welfare retirement benefits or the equivalent thereof to current and former employees of the Company and its Subsidiaries and similar obligations provided by the Company or any of its Subsidiaries or obligations in respect of letters of credit related thereto, in each case, in the ordinary course of business;
(xii) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business; provided 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;
(xiii) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to the extent that the net proceeds thereof are promptly deposited to defease or to satisfy and discharge the Notes;
(xiv) the Incurrence by the Company or any of its Restricted Subsidiaries of cash management obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements, employee credit or purchase cards, overdraft protections and similar arrangements, in each case, in connection with deposit accounts;
(xv) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness owing to any insurance company in connection with the financing of any insurance premiums permitted by such insurance company in the ordinary course of business;
(xvi) the Incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred pursuant to this clause (xvi), in an amount not to exceed the amount so Refinancedgreater of (1) $75.0 million and (2) 4.0% of Tangible Assets at the time of Incurrence; and
(xvii) the Incurrence of Acquired Debt; provided that Indebtednessthat, (1) after giving effect to the Incurrence thereof, the proceeds Company could Incur at least $1.00 of which are used Indebtedness under the Consolidated Leverage Ratio set forth in Section 4.09(a) or (2) the Consolidated Leverage Ratio of the Company after giving effect to Refinance Subordinated Indebtednessthe Incurrence thereof would be less than or equal to the Company’s actual Consolidated Leverage Ratio immediately prior to such Incurrence. For purposes of determining compliance with this Section 4.09, will in the event that any proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in Section 4.09(b)(i) through (xvii) above, or is entitled to be Incurred pursuant to Section 4.09(a), the Company shall be permitted to classify such item of Indebtedness at the time of its Incurrence in any manner that complies with this Section 4.09. Additionally, all or any portion of any item of Indebtedness may later be reclassified as having been Incurred pursuant to Section 4.09(a) or under this clause any one of the categories of Permitted Debt described in Section 4.09(b)(i) through (5xvii) only if:so long as such Indebtedness is permitted to be Incurred pursuant to such provision at the time of reclassification. Notwithstanding the foregoing, Indebtedness under the Credit Agreement outstanding on the Issue Date shall be deemed to have been Incurred on such date in reliance on the exception provided by Section 4.09(b)(i) and may not later be reclassified.
(Ac) such new IndebtednessNotwithstanding any other provision of this Section 4.09, by its terms or by the terms maximum amount of any agreement or instrument Indebtedness that may be Incurred pursuant to which such new 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 issued or remains outstanding, contractually subordinate in right of payment to any other Indebtedness of the Company unless it is expressly made contractually subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a same extent. No Subsidiary Guarantor shall Incur any Indebtedness that ranks equally with or is contractually subordinate in right of payment to any other Indebtedness of such Subsidiary Guarantor unless it is contractually subordinate in right of payment to any Guarantee of the Notes or by such Subsidiary Guarantor’s Note Guarantee, Guarantor to the same extent; provided that no Indebtedness shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company or any Subsidiary Guarantor (as applicable), be Refinanced solely by means reason of any Indebtedness Liens or Guarantees arising or created in respect thereof or by virtue of the fact that the holders of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);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
Incurrence of Indebtedness. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount ratio of all outstanding consolidated Indebtedness of the Company Issuer and its the Restricted Subsidiaries on a consolidated basis would be greater than 65% of to Adjusted Total Assets as of any date of Incurrencewould exceed 0.60 to 1.00.
(b) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount ratio of all outstanding Subsidiary Indebtedness and consolidated Secured Indebtedness of the Company Issuer and its the Restricted Subsidiaries on a consolidated basis would be greater than 45% of to Adjusted Total Assets as of any date of Incurrencewould exceed 0.45 to 1.00.
(c) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the Interest Fixed Charge Coverage Ratio of the Company Issuer and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 2.00 to 1.0 1.0; provided that for purposes of calculating the Fixed Charge Coverage Ratio pursuant to this clause (c), for each of the first four (4) full Fiscal Quarters commencing with the Fiscal Quarter beginning on July 1, 2020, Consolidated EBITDA for any such Fiscal Quarter shall be calculated on a Pro Forma Basis)as the greater of (x) Consolidated EBITDA in such Fiscal Quarter and (y) zero; provided, further that, for so long as any Subsidiary of the Issuer Guarantees the Notes, the amount of additional Indebtedness that may be Incurred from and after the Issue Date by Restricted Subsidiaries that are not Subsidiary Guarantors under this clause (c) shall not exceed the greater of $150.0 million and an amount equal to 3.5% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding.
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company Issuer or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company Issuer or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) the greater of $3,400.0 1,300.0 million plus (y) the aggregate principal and an amount equal to 30.0% of Adjusted Total Assets at any time outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing Refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);Refinancing;
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness directly or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries toindirectly, Incur any Indebtedness if(including Acquired Debt); provided, after giving effect to however, that the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company Issuer or any of its Restricted Subsidiaries may Incur each and Indebtedness (including Acquired Debt) if all of the followingbelow are satisfied:
(1i) if the Consolidated Fixed Charge Coverage Ratio for the Issuer’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is Incurred would have been at least 2.0:1.0 determined on a pro forma basis (including a pro forma application of the Company net proceeds therefrom), as if the additional Indebtedness had been Incurred at the beginning of such four-quarter period;
(ii) if immediately following the Incurrence of such Indebtedness the ratio of (i) Consolidated Indebtedness, to (ii) Consolidated EBITDA, does not exceed 4.0:1.0;
(iii) after September 30, 2021, if immediately following the Incurrence of such Indebtedness the ratio of (i) Consolidated Indebtedness, to (ii) Enterprise Value is not greater than 0.3:1.0; and
(iv) no Default or Event of Default shall have occurred and be continuing.
(b) Notwithstanding the foregoing, Section 6.9(a) will not prohibit the Incurrence of any of the following (collectively, “Permitted Debt”):
(i) the Incurrence of Attributable Debt or Indebtedness and obligations represented by Capital Lease Obligations or Purchase Money Obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation, development or improvement of property, plant or equipment used in the business of the Issuer or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance its Restricted Subsidiaries, including all Permitted Refinancing Indebtedness Incurred to refund, refinance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed replace any Indebtedness Incurred pursuant to have a principal amount equal to the face amount thereofthis Section 6.9(b)(i), in an aggregate principal amount at any one time outstanding not to exceed 3.0% of Consolidated Net Tangible Assets of the sum of Issuer at any time outstanding;
(1) (x) $3,400.0 million plus (yii) the aggregate principal amount Incurrence of any outstanding Incremental Term Loans Non-Recourse Debt;
(provided that after giving pro forma effect to any such incurrences iii) the Incurrence of Existing Indebtedness;
(iv) the Incurrence by the Issuer and the Guarantors of Indebtedness pursuant represented by the Notes and the Guarantees, in each case, issued on the Issue Date;
(v) the Incurrence by the Issuer or any Restricted Subsidiary of the Issuer of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease or discharge Indebtedness (other than intercompany Indebtedness) that was permitted by this clause (yIndenture to be Incurred under Section 6.9(a) or Sections 6.9(b)(ii), 6.9(b)(iv), 6.9(b)(xii) or 6.9(b)(xiii);
(vi) the Company and Incurrence by the Issuer or any of its Restricted Subsidiaries are in compliance with paragraphs (a) of intercompany Indebtedness owing to and (b) above) plus (2) in held by the case of any refinancing of any Indebtedness permitted under this clause (1) Issuer or any portion thereofof its Restricted Subsidiaries; provided, the aggregate amount of feeshowever, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed tothat:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company Issuer or any Subsidiary Guarantor is an obligorthe obligor on such Indebtedness, such Indebtedness must be unsecured and expressly subordinated to the Indebtedness is subordinated prior payment in right full in cash of payment all Obligations with respect to the Notes, in the case of the CompanyIssuer, or the Note any Guarantee, in the case of a Subsidiary Guarantor Guarantor;
(except B) such Indebtedness owed to the extent prohibited by applicable Gaming Law); and provided further Issuer or any Guarantor must be unsubordinated obligations, unless the obligor under such Indebtedness is the Issuer or a Guarantor;
(1) any subsequent issuance or transfer of Equity Interests that any event which results in any such Restricted Subsidiary ceasing to be Indebtedness being held by a Person other than the Issuer or a Restricted Subsidiary thereof and (2) any sale or any subsequent other transfer of any such Indebtedness (other than to a Person that is not either the Company Issuer or any other a Restricted Subsidiary) shall Subsidiary thereof, will be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Issuer or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (2)(BSection 6.9(b)(vi);
(3vii) the Notes Guarantee by the Issuer or any of the Guarantors of Indebtedness of the Issuer or any Restricted Subsidiary of the Issuer that was permitted to be issued on the Issue DateIncurred by another provision of this covenant;
(4viii) Indebtedness outstanding as the Incurrence by the Issuer or any of its Restricted Subsidiaries of Hedging Obligations for the Issue Datepurpose of managing risks in the ordinary course of business and not for speculative purposes;
(5ix) the Incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance bonds, completion bonds, bid bonds, appeal bonds and surety bonds or other similar bonds or obligations, and any Guarantees or letters of credit functioning as or supporting any of the foregoing, in each case provided by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business;
(x) the Incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit issued in exchange forthe ordinary course of business; provided that, upon the drawing of such letters of credit or the net proceeds Incurrence of which such Indebtedness, such obligations are used reimbursed within one year following such drawing or Incurrence;
(xi) the Incurrence by the Issuer or any of its Restricted Subsidiaries of Permitted Acquisition Indebtedness;
(xii) any guarantee, indemnity, reimbursement or similar obligation or liability of the Issuer or any Restricted Subsidiary relating to extendthe contractual or other obligations of any Subsidiary that is not otherwise prohibited by the Indenture and including, without limitation under (1) any lease agreement for a Permitted Business or (2) construction financing and/or tenant improvement allowances for a Permitted Business, in each case in the ordinary course of business and consistent with past practices;
(xiii) the Incurrence (or continued Incurrence) by the Issuer or any of its Restricted Subsidiaries of First-Lien Indebtedness provided, however that at no time aggregate Indebtedness (other than Indebtedness under the Notes or Guarantees) secured by First-Priority Liens over the assets of the Issuer and any Restricted Subsidiary may exceed $300 million;
(xiv) the Incurrence of Subordinated Debt;
(xv) the Incurrence of Indebtedness Incurred by the Issuer or a Subsidiary in connection with the financing of any right, title and interest of the Issuer or any Subsidiary in or to real property; or
(xvi) the Incurrence (or continued Incurrence) by the Issuer or any of its Restricted Subsidiaries of additional Indebtedness not otherwise permitted under clause (i) through (xv) above in an aggregate amount at any time outstanding, including all Permitted Refinancing Indebtedness Incurred to refund, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of replace any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor Incurred pursuant to this clause (515);, not to exceed the greater of (a) $15 million or (b) the amount equal to 0.3 multiplied by the aggregate amount of Consolidated EBITDA for the most recently completed twelve fiscal months of the Issuer for which the internal financial statements are available immediately preceding the date on which such Indebtedness is Incurred.
(c) For purposes of determining compliance with this covenant, in the event that any proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in Section 6.9(b)(i) through (xvi) above, or is entitled to be Incurred or issued pursuant to Section 6.9(a), the Issuer will be permitted to divide and classify such item of Indebtedness at the time of its Incurrence in any manner that complies with this Section 6.9. In addition, any Indebtedness originally divided or classified as Incurred pursuant to Section 6.9(b)(i) through (xii) above or pursuant to Section 6.9(a) may later be re-divided or reclassified by the Issuer such that it will be deemed as having been Incurred pursuant to another of such clauses or such paragraph; provided that such re-divided or reclassified Indebtedness could be Incurred pursuant to such new clause or such paragraph at the time of such re-division or reclassification. Notwithstanding the foregoing, Indebtedness outstanding on the Issue Date will be deemed to have been Incurred on such date in reliance on the exception provided pursuant to Sections 6.9(b)(i) or (iii). 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 such determination.
(d) Notwithstanding any other provision of this covenant and for the avoidance of doubt, the maximum amount of Indebtedness that may be Incurred pursuant to this covenant will 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 or increases in the value of property securing Indebtedness which occur subsequent to the date that such Indebtedness was Incurred as permitted by this covenant.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries todirectly or indirectly, Incur any Subsidiary Indebtedness Indebtedness; provided, however, that the Company or any Secured Subsidiary Guarantor may Incur Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness (and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all Acquired Indebtedness) if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is Incurred would have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the following:net proceeds therefrom), as if the additional Indebtedness had been Incurred at the beginning of such four-quarter period.
(1b) Clause (a) of this Section 4.09 shall not prohibit the Incurrence of any of the following items of Indebtedness of (collectively, “Permitted Debt”):
(i) the Incurrence by the Company or any Restricted Subsidiary of the Subsidiary Guarantors outstanding Company of Indebtedness under Credit Facilities (including, without limitation, the Incurrence by Restricted Subsidiaries of Guarantees thereof and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), thereunder) in an aggregate principal amount at any one time outstanding pursuant to this clause (i) not to exceed the greater of (A) $220.0 million less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary thereof to permanently repay any such Indebtedness pursuant to Section 4.10 (provided that the Company and its Restricted Subsidiaries shall not be required to use Asset Sale proceeds to permanently reduce revolver commitments) or (B) the sum of (1) $65.0 million and (x) $3,400.0 million plus (y2) the aggregate principal amount Borrowing Base (provided, however, that, in the case of each of subclauses (A) and (B), Indebtedness Incurred by any outstanding Incremental Term Loans Restricted Subsidiaries of the Company that are not Guarantors (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (yi), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, limited to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B$50.0 million at any time outstanding);
(3ii) the Incurrence of Existing Indebtedness;
(iii) the Incurrence by the Company and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the Issue DateDate (as well as the notes and Guarantees issued in exchange therefor pursuant to the Registration Rights Agreement);
(4iv) Indebtedness outstanding as the Incurrence by the Company or any Restricted Subsidiary of the Issue DateCompany 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 installation, construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate amount at any time outstanding, including all Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred pursuant to this clause (iv), not to exceed the greater of (x) $15.0 million and (y) 2.5% of Consolidated Net Tangible Assets;
(5v) the Incurrence by the Company or any Restricted Subsidiary of the Company of Permitted Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to extendrefund, refinance, renew, refinance or replace, defease, discharge or refund other outstanding Indebtedness (other than clauses intercompany Indebtedness) that was permitted by this Indenture to be Incurred under clause (1), (2), (6), (10), (11) and (13a) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing 4.09 or clause (any such action, to “Refinance”ii), in an amount not to exceed the amount so Refinanced; provided that Indebtedness(iii), the proceeds (iv), (v), (xiii) or (xvii) of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:Section 4.09(b);
(Avi) such new Indebtedness, the Incurrence by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries (including, without limitation, the issuance of Preferred Stock of a Restricted Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes Company or such Subsidiary Guarantor’s Note Guaranteeanother Restricted Subsidiary); provided, as applicablehowever, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);that:
Appears in 1 contract
Sources: Indenture (Hexacomb CORP)
Incurrence of Indebtedness. (a) The Company Parent will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount ratio of all outstanding Indebtedness Consolidated Total Debt of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Parent to Adjusted Total Assets as of any date of IncurrenceParent would exceed 0.65 to 1.00.
(b) The Company Parent will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefromDebt, on a Pro Forma Basis, the aggregate principal amount ratio of all outstanding Subsidiary Indebtedness and Consolidated Total Secured Indebtedness Debt of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Parent to Adjusted Total Assets as of any date of IncurrenceParent would exceed 0.45 to 1.00.
(c) The Company Parent will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis Parent would be less than 2.0 1.50 to 1.0 1.00; provided that, for so long as any Subsidiary of Parent Guarantees the Notes, the amount of additional Indebtedness that may be Incurred from and after the Issue Date by Restricted Subsidiaries that are not Subsidiary Guarantors under this clause (calculated on a Pro Forma Basis)c) shall not exceed the greater of $430.0 million and an amount equal to 7.5% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding.
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company Parent or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company Parent or any of the Subsidiary Guarantors outstanding Restricted Subsidiaries under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1A) (x) the greater of $3,400.0 million 2.0 billion and an amount equal to 35.0% of Adjusted Total Assets of Parent at any time outstanding plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2B) in the case of any refinancing Refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;Refinancing;
(2) intercompany Indebtedness owed tobetween or among Parent and any of its Restricted Subsidiaries; provided, however, that:
(A) The Company if either Issuer or any Guarantor is the obligor on such Indebtedness and the payee is not an Issuer or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if Guarantor, such Indebtedness must be unsecured and expressly subordinated to the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated prior payment in right full in cash of payment all Obligations with respect to the Notes, in the case of the Companyeither Issuer, or the Note Guarantee, in the case of a Subsidiary Guarantor Guarantor; and
(except to the extent prohibited by applicable Gaming Law); and provided further B) (x) any subsequent issuance or transfer of Equity Interests that any event which results in any such Restricted Subsidiary ceasing to be Indebtedness being held by a Person other than Parent or a Restricted Subsidiary of Parent and (y) any sale or any subsequent other transfer of any such Indebtedness (other than to the Company or any other a Person that is neither Parent nor a Restricted Subsidiary) shall Subsidiary of Parent, will be deemed, in each case, to constitute an Incurrence of such Indebtedness by Parent or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (2)(B);Section 4.08(d)(2)(B);
(3) the Notes to be issued on the Issue DateDate and any Note Guarantees thereof;
(4) Indebtedness outstanding as of the Issue Date;Existing Indebtedness;
(5) Indebtedness (i) issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge discharge, refund or refund otherwise retire for value, in whole or in part, or (ii) constituting an amendment, modification or supplement to or a deferral or renewal of other outstanding Indebtedness (other than clauses any such action, to “Refinance” or a “Refinancing”), in each case that was incurred under the provisions of paragraph (1a), (2b) or (c) of this covenant or clauses (3), (64), (105), (7), (8), (9), (11) and ), (13), (14), (20), (21) or (23) of this Section 4.08(d)) , in an amount not to exceed the amount so Refinanced plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums premiums, customary reserves required to be funded and maintained in connection with such Indebtedness and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinancedrefinancing; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, Indebtedness will be permitted under this clause (5clause(5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is contractually subordinated to the Notes; and, if applicable;
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature have a final maturity date or redemption date, as applicable, prior to the earlier of (1) the Stated Maturity of the Subordinated Indebtedness to be Refinanced, or (2) the date that is 91 days after the Stated Maturity of the Notes, and the Average Life of such new Indebtedness is at least equal to the earlier of (1) the remaining Average Life of the Subordinated Indebtedness to be Refinanced, or (2) 91 days more than the Average Life of the Notes; and
(C) such Indebtedness is not incurred by a Restricted Subsidiary of Parent (other than a Guarantor or the Operating Partnership) if the Operating Partnership is the issuer or other primary obligor on the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged; and provided further, that in no event may Indebtedness of the Company Issuer or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);
(6) obligations (contingent or otherwise) existing or arising under any Hedging Obligations, Permitted Bond Hedge Transactions or Swap Contracts entered into for purposes that are not speculative;
(7) (A) Finance Leases, synthetic lease obligations, purchase money obligations or mortgage financings Incurred after the Issue Date and (B) Indebtedness secured by purchase money Liens, in an aggregate outstanding principal amount for clauses (A) and (B) on a combined basis Incurred from and after the Issue Date not to exceed the greater of $145.0 million and an amount equal to 2.5% of Adjusted Total Assets of Parent at any time outstanding; provided, however, that, subject to clause (g), any Refinancing Incurred under clause (5) above in respect of such Indebtedness shall be deemed to have been Incurred under this clause (7) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (7);
(8) Indebtedness of Parent, to the extent the net proceeds therefrom are promptly:
(A) used to purchase Notes tendered in a Change of Control Offer made as a result of a Change of Control Triggering Event; or
(B) deposited to defease or discharge the Notes as described in Article 8 and Article 11 hereof;
(9) Indebtedness Incurred in connection with any Sale and Leaseback Transaction;
(10) any Guarantee by Parent or any of its Restricted Subsidiaries of Indebtedness of Parent or a Restricted Subsidiary of Parent to the extent that the Guaranteed Indebtedness was permitted to be Incurred by another provision of this covenant; provided that if the Indebtedness being Guaranteed is subordinated to or pari passu with the Notes, then the Guarantee must be subordinated or pari passu, as applicable, to the same extent as the Indebtedness Guaranteed; provided further that any such Guarantees by Parent, any Issuer or any Subsidiary Guarantor of any Indebtedness of any Restricted Subsidiary that is not an Issuer or a Subsidiary Guarantor is subordinated in right of payment to the obligations of Parent, the Issuers and the Subsidiary Guarantors under the Notes and the Guarantees, respectively;
(11) Guarantees issued by Parent or any of its Restricted Subsidiaries of any Indebtedness of Joint Ventures or Unrestricted Subsidiaries Incurred from and after the Issue Date in an amount not to exceed the greater of $115.0 million and 2.0% of Adjusted Total Assets of Parent at any time outstanding, if both before and after giving effect to the Incurrence of each such Guarantee, no Default or Event of Default has occurred or is continuing; provided, however, that, subject to clause (g), any Refinancing Incurred under clause (5) above in respect of such Indebtedness shall be deemed to have been Incurred under this clause (11) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (11);
(12) Indebtedness of Parent or any of its Restricted Subsidiaries supported by a letter of credit issued under any Credit Facilities in an aggregate principal amount not to exceed the stated amount of such letter of credit (but which stated amount may include the amount of any anticipated premiums, expenses (including upfront fees and original issue discount) and any accretion in the principal amount thereof);
(13) Indebtedness (A) of a Person outstanding on the date of any acquisition of such Person, including through the acquisition of a Person that becomes a Restricted Subsidiary or is acquired by, or merged or consolidated with or into, Parent or any Restricted Subsidiary, or that is assumed by Parent or any Restricted Subsidiary in connection with any such acquisition (other than Indebtedness Incurred by such Person in connection with, or contemplation of, such acquisition, merger or consolidation), (B) Incurred to provide all or any portion of the funds utilized to acquire, or to consummate the transaction or series of related transactions in connection with or in contemplation of any acquisition, of a Person that becomes a Restricted Subsidiary, (C) assumed in connection with an Asset Acquisition by Parent or a Restricted Subsidiary or (D) Incurred in connection with any Investment in a third party permitted under this Indenture, in each case under this clause (13), as long as immediately after giving effect thereto, either (i) the Interest Coverage Ratio on a Pro Forma Basis would be at least 1.50 to 1.0 or (ii) the Interest Coverage Ratio on a Pro Forma Basis would be greater than or equal to the actual Interest Coverage Ratio immediately prior to such acquisition, Incurrence or assumption, in each case under this clause (13), with the Interest Coverage Ratio calculated in accordance with clause (c) above;
(14) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, together with any other Indebtedness Incurred from and after the Issue Date pursuant to this clause (14) or clause (c) above by such Restricted Subsidiaries, in an amount not to exceed the greater of $460.0 million and an amount equal to 8.0% of Adjusted Total Assets of Parent in the aggregate for all such Restricted Subsidiaries at any time outstanding; provided, however, that, subject to clause (g), any Refinancing Incurred under clause (5) above in respect of such Indebtedness shall be deemed to have been Incurred under this clause (14) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (14);
Appears in 1 contract
Sources: Indenture (Pebblebrook Hotel Trust)
Incurrence of Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, incur any Indebtedness, provided, however, that the Company and any Guarantor may incur Indebtedness if, immediately if at the time of the incurrence and after giving pro forma effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromof the Indebtedness, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis Consolidated Fixed Charge Coverage Ratio would be greater than 65% of Adjusted Total Assets as of any date of Incurrenceat least 2.0 to 1.0.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect In addition to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would that may be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses incurred under clause (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in may incur Permitted Indebtedness.
(c) For purposes of determining compliance with paragraphs this Section 4.09, (a) and (b) above) plus (2i) in the case event that an item of any refinancing Indebtedness meets the criteria of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case more than one of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such types Permitted Indebtedness (other than to the Company or any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence incurrence thereof, or is entitled to be incurred pursuant to Section 4.09(a) as of the date of incurrence thereof, the Company, in its sole discretion, will be permitted to classify such item of Indebtedness on the date of its incurrence, or later classify or reclassify all or a portion of such new item of Indebtedness, does not mature prior in any manner that complies with this covenant and (ii) at each such time, the Company will be entitled to the Stated Maturity divide, classify and reclassify an item of Indebtedness in more than one of the Subordinated types of Indebtedness to be Refinanceddescribed above.
(d) In addition, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or will not permit any of its Unrestricted Subsidiaries to incur any Indebtedness, other than Non-Recourse Debt. If an Unrestricted Subsidiary becomes a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note GuaranteeRestricted Subsidiary, as applicable, be Refinanced by means of any Indebtedness of any such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary that as of such date (and, if such Indebtedness is not a Subsidiary Guarantor pursuant permitted to be incurred as of such date under this clause (5Section 4.09, the Company shall be in default of this Section 4.09);.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, "incur") any Indebtedness if(including Acquired Debt); provided, however, that the Company and any Restricted Subsidiary may incur Indebtedness (including Acquired Debt), if the Fixed Charge Coverage Ratio for the Company's most recently ended four full fiscal quarters for which internal financial statements are available immediately after giving effect preceding the date on which such additional Indebtedness is incurred would have been at least 2 to the Incurrence of such Indebtedness and the receipt and 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 beginning of such four-quarter period.
(b) Notwithstanding the prohibitions of paragraph (a) of this Section 4.09, the Company may incur of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(i) the incurrence by the Company and any Restricted Subsidiary of the Indebtedness under Credit Facilities (including amounts outstanding at the Issue Date); provided that the aggregate principal amount of all outstanding Indebtedness under such Credit Facilities (including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (i)) permitted by this clause (i) does not exceed an amount equal to $375 million, less any repayments actually made thereunder with the Net Proceeds of Asset Sales in accordance with clause (b) of the second paragraph of Section 4.07;
(ii) the incurrence by the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.Existing Indebtedness (excluding amounts outstanding under Credit Facilities at the Issue Date);
(biii) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of incurrence by the Company and its Restricted Subsidiaries the Subsidiary Guarantors of Indebtedness represented by the Notes and the Note Guarantees issued on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.the Issue Date;
(civ) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, incurrence by the Company or any of its Restricted Subsidiaries may Incur of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each and case, incurred for the purpose of financing all or any part of the following:
(1) Indebtedness purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof)such Restricted Subsidiary, in an aggregate principal amount at (including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness incurred pursuant to this clause (yiv)) not to exceed $50 million at any time outstanding;
(v) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace, Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under paragraph (a) of this Section 4.09 or clause (i), (ii), (iii), (iv) or (ix) of this paragraph (b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereofSubsidiaries; provided, the aggregate amount of feeshowever, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed tothat:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the obligor on such Indebtedness and such Indebtedness is owed to or held by a Restricted Subsidiary that is not a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in right full in cash of payment all Obligations with respect to the Notes, in the case of the Company, or the Note GuaranteeGuarantee of such Subsidiary Guarantor, in the case of a Subsidiary Guarantor Guarantor; and
(except to the extent prohibited by applicable Gaming Law); and provided further B) (i) any subsequent issuance or transfer of Equity Interests that any event which results in any such Restricted Subsidiary ceasing to be Indebtedness being held by a Restricted Subsidiary or any subsequent transfer of such Indebtedness (Person other than to the Company or a Wholly Owned Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Restricted Subsidiary) 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 (2)(Bvi);
(3vii) the Notes incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of hedging interest rate risk with respect to be issued on the Issue Date;
(4) any Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be is permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness this Indenture to be Refinanced is subordinated to the Notes; andoutstanding;
(Bviii) such new Indebtedness, determined as the guarantee by the Company or any of the date its Restricted Subsidiaries of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Restricted Subsidiary Guarantor of the Company that ranks equally with was permitted to be incurred by another provision of this Section 4.09;
(ix) the incurrence by the Company or subordinate any of its Restricted Subsidiaries of additional Indebtedness in right of payment to the Notes an aggregate principal amount (or such Subsidiary Guarantor’s Note Guaranteeaccrued value, as applicable) at any time outstanding, be Refinanced by means of including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor incurred pursuant to this clause (5ix), not to exceed $50 million;
(x) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt; provided, however, that if any such Indebtedness ceases to be Non- Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Company that was not permitted by this clause (x);
(xi) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of judgment, appeal, surety, performance and other like bonds, bankers acceptances and letters of credit provided by the Company and its Subsidiaries in the ordinary course of business (including any Indebtedness incurred to refinance, retire, renew, defease, refund or otherwise replace any Indebtedness referred to in this clause (xi)); and
(xii) Indebtedness incurred by the Company or any of its Subsidiaries arising from agreements or their respective bylaws providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries to any Person acquiring all or a portion of such business or assets of a Subsidiary of the Company.
(c) For purposes of determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in paragraphs (b)(i) through (b)(xii) above, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.09, the Company shall be permitted to classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.09.
Appears in 1 contract
Sources: Indenture (Mail Well Inc)
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, Incur any Indebtedness; provided, however, that the Company or any Guarantor may Incur Indebtedness ifor Disqualified Stock, and any Guarantor may issue Preferred Stock, if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness or Disqualified Stock is Incurred or Preferred Stock is issued would have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness, Disqualified Stock or Preferred Stock had been Incurred or issued at the beginning of such four-quarter period. The first paragraph of this Section 1109 will not prohibit the Incurrence of the following items of Indebtedness (collectively, “Permitted Debt”):
(1) the Incurrence by the Company or any Guarantor of Indebtedness under one or more Credit Facilities, provided that, after giving effect to the Incurrence of any such Indebtedness and the receipt and application of the proceeds therefromIncurrence, the aggregate principal amount of all Indebtedness Incurred pursuant to this clause (1) and then outstanding does not exceed the greater of (a) $250.0 million less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary thereof to permanently repay any such Indebtedness pursuant to Section 1110 or (b) $150.0 million plus 20% of the Consolidated Net Assets of the Company;
(2) the Incurrence of Existing Indebtedness;
(3) the Incurrence by the Company and its Restricted Subsidiaries the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees issued on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.the Issue Date;
(b4) The the Incurrence by the Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Guarantor of Indebtedness ifrepresented by Capital Lease Obligations, immediately after giving effect to mortgage financings, construction loans or purchase money obligations for property acquired in the Incurrence ordinary course of such Subsidiary Indebtedness business, in each case Incurred for the purpose of financing all or Secured Indebtedness and the receipt and application any part of the proceeds therefrompurchase price or cost of construction or improvement of property, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of plant or equipment used by the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of or any date of Incurrence.
(c) The Company will notsuch Guarantor, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness ifin an aggregate outstanding principal amount, after giving effect to such Incurrence and together with all Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred pursuant to this clause (4) and then outstanding, not to exceed the greater of (a) $35.0 million or (b) 7.5% of the Company’s Consolidated Net Assets;
(5) the Incurrence of such Indebtedness and by the receipt and application of the proceeds therefrom, the Interest Coverage Ratio Company or any Restricted Subsidiary of the Company and its Restricted Subsidiaries on a consolidated basis would of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund Indebtedness (other than intercompany Indebtedness) that was permitted by the Indenture to be less than 2.0 to 1.0 Incurred under the first paragraph of this covenant or clause (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a2), (b3), (4) and or (c5) of this Section 4.08, paragraph;
(6) the Incurrence by the Company or any of its Restricted Subsidiaries may Incur each of intercompany Indebtedness owing to and all of the following:
(1) Indebtedness of held by the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs Subsidiaries; provided, however, that:
(a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligorthe obligor on such Indebtedness and the payee is neither the Company nor a Guarantor, such Indebtedness must be unsecured and expressly subordinated to the Indebtedness is subordinated prior payment in right full in cash of payment all Obligations with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor Guarantor;
(except to the extent prohibited by applicable Gaming Law); and provided further that any event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such b) Indebtedness (other than 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 SubsidiarySubsidiary thereof and (ii) shall any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary thereof, 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 (2)(B6);
(37) the Notes to be issued on Guarantee (a) by the Issue Date;
(4) Indebtedness outstanding as Company or any of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds Guarantors of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced (b) by means of any Indebtedness of any Restricted Subsidiary of the Company that is not a Guarantor of Indebtedness of a Restricted Subsidiary Guarantor of the Company that is not a Guarantor, in each case that was permitted to be Incurred by another provision of this covenant;
(8) the Incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations that are Incurred for the purpose of fixing, hedging or swapping interest rate, commodity price or foreign currency exchange rate risk (or to reverse or amend any such agreements previously made for such purposes), and not for speculative purposes, and that do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in interest rates, commodity prices or foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder;
(9) the Incurrence by any Foreign Subsidiary of Indebtedness in an aggregate outstanding principal amount, after giving effect to such Incurrence and together with all Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred pursuant to this clause (9) and then outstanding, not to exceed the greater of (a) $25.0 million or (b) 40% of the Consolidated Net Assets of any such Foreign Subsidiaries;
(10) the Incurrence of Other Permitted Debt;
(11) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in connection with a transaction meeting either one of the financial tests set forth in clause (3) of Section 901; or
(12) the Incurrence by the Company or any Guarantor of additional Indebtedness in an aggregate outstanding principal amount, after giving effect to such Incurrence and together with all Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred pursuant to this clause (12) and then outstanding, not to exceed the greater of (a) $25.0 million or (b) 5);% of the Consolidated Net Assets of the Company. For purposes of determining compliance with this Section 1109, in the event that any proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (12) above, or is entitled to be Incurred pursuant to the first paragraph of this Section 1109, the Company shall be permitted to classify such item of Indebtedness at the time of its Incurrence in any manner that complies with this Section 1109. In addition, any Indebtedness originally classified as Incurred pursuant to clauses (1) through (12) 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 at the time of such reclassification. Notwithstanding the foregoing, Indebtedness under the Credit Agreement outstanding on the Issue Date will be deemed to have been Incurred on such date in reliance on the exception provided by clause (1) of the definition of Permitted Debt discussed above. For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. Notwithstanding any other provision of this covenant, the maximum amount of Indebtedness that the Company may Incur pursuant to this covenant shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rates of currencies. The principal amount of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such refinancing Indebtedness is denominated that is in effect on the date of such refinancing.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Total Net Debt to Adjusted Total Assets as of any date of IncurrenceRatio would exceed 0.65 to 1.00.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Senior Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Net Debt to Adjusted Total Assets as of any date of IncurrenceRatio would exceed 0.45 to 1.00.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis)1.0; provided that the amount of Indebtedness that may be Incurred by Restricted Subsidiaries that are not Subsidiary Guarantors shall not exceed the greater of $800.0 million and an amount equal to 8.0% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding .
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) the greater of $3,400.0 4,000.0 million and an amount equal to 40.0% of Adjusted Total Assets at any time outstanding, plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma Pro Forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing Refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);Refinancing;
Appears in 1 contract
Sources: Indenture (Vici Properties Inc.)
Incurrence of Indebtedness. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount ratio of all outstanding consolidated Indebtedness of the Company Issuer and its the Restricted Subsidiaries on a consolidated basis would be greater than 65% of to Adjusted Total Assets as of any date of Incurrencewould exceed 0.65 to 1.00.
(b) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount ratio of all outstanding Subsidiary Indebtedness and consolidated Secured Indebtedness of the Company Issuer and its the Restricted Subsidiaries on a consolidated basis would be greater than 45% of to Adjusted Total Assets as of any date of Incurrencewould exceed 0.45 to 1.00.
(c) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the Interest Coverage Ratio of the Company Issuer and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 1.50 to 1.0 1.0; provided that for purposes of calculating the Interest Coverage Ratio pursuant to this clause (c), for each of the first four (4) full Fiscal Quarters commencing with the Fiscal Quarter beginning on July 1, 2020, Consolidated EBITDA for any such Fiscal Quarter shall be calculated on a Pro Forma Basis)as the greater of (x) Consolidated EBITDA in such Fiscal Quarter and (y) zero; provided, further that, for so long as any Subsidiary of the Issuer Guarantees the Notes, the amount of additional Indebtedness that may be Incurred from and after the Issue Date by Restricted Subsidiaries that are not Subsidiary Guarantors under this clause (c)shall not exceed the greater of $500.0 million and an amount equal to 7.5% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding.
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company Issuer or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company Issuer or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) the greater of $3,400.0 2,500.0 million plus (y) the aggregate principal and an amount equal to 35.0% of Adjusted Total Assets at any time outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;Refinancing;
(2) Indebtedness owed to:
(A) The Company an Issuer or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; note; or
(B) any other Restricted Subsidiary; Subsidiary; provided that if the Company Issuer or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the CompanyIssuer, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); Guarantor; and provided further that any event 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 Issuer or any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);2)(B);
(3) the Notes to be issued on the Issue DateDate and the related Note Guarantees;
(4) Indebtedness outstanding as of the Issue Date;Date (excluding Indebtedness described in clause (1) above);
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund refund, other outstanding Indebtedness that was incurred under the provisions of paragraph (other than clauses (1a), (2b) or (c) of this covenant or clauses (3), (64), (5), (8), (9), (10), (1114), (17), (18), (24), (25) and or (1327) of this Section 4.08(d)) , in an amount not to exceed the amount so Refinanced plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums premiums, customary reserves required to be funded and maintained in connection with such Indebtedness and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; ” or a “Refinancing”); provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, Indebtedness will be permitted under this clause (5) only if:if (except in the case of COVID-19 Relief Funds and Refinancings thereof):
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; , if applicable; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the earlier of (i) the Stated Maturity of the Subordinated Indebtedness to be Refinanced, or (ii) the date that is 91 days after the Stated Maturity of the Notes, and the Average Life of such new Indebtedness is at least equal to the earlier of (1) the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and , or (2) 91 days more than the Average Life of the Notes; provided further, that in no event may Indebtedness of the Company Issuer or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);
(6) (i) obligations (contingent or otherwise) existing or arising under any Hedging Obligations or Swap Contracts (including Secured Hedge Agreements) entered into for the purpose of mitigating risks associated with fluctuations in interest rates (including both fixed to floating and floating to fixed contracts), foreign exchange rates or commodity price fluctuations in a non-speculative manner and (ii) Indebtedness consisting of any Permitted Bond Hedge Transaction or any Permitted Warrant Transaction;
(7) Indebtedness under Secured Cash Management Agreements, cash pooling agreements with hotel management companies and in respect of netting services, any Overdraft Line and otherwise in connection with deposit accounts, commercial credit cards, stored value cards, purchasing cards and treasury management services, including any obligations pursuant to Cash Management Agreements, and other netting services, overdraft protections, automated clearing-house arrangements, employee credit card programs, controlled disbursement, ACH transactions, return items, interstate depository network service, Society for Worldwide Interbank Financial Telecommunication transfers, cash pooling and operational foreign exchange management, and in each case, similar arrangements and otherwise in connection with cash management, including cash management arrangements among the Issuer and its Subsidiaries;
(8) (A) Finance Leases, synthetic lease obligations, purchase money obligations or mortgage financings Incurred after the Issue Date and (B) Indebtedness secured by purchase money Liens, in an aggregate outstanding principal amount for clauses (A) and (B) on a combined basis Incurred from and after the Issue Date not to exceed the greater of $500.0 million and an amount equal to 7.5% of Adjusted Total Assets at any time outstanding; provided, however, that, subject to clause (g), any Refinancing Incurred under clause (5) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (8) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (8);
(9) Indebtedness of the Issuer, to the extent the net proceeds therefrom are promptly:
(A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change of Control Triggering Event; or
(B) deposited to defease or discharge the Notes as described in Articles 8 and 11 hereof;
(10) Indebtedness incurred in connection with any Sale and Leaseback Transaction;
(11) customer deposits and advance payments received from customers in the ordinary course of business;
(12) any Guarantee issued by the Issuer pursuant to the matters described in any indemnity agreements entered into for the benefit of a title company that has been engaged by the Issuer or any of its Restricted Subsidiaries;
(13) Guarantees by the Issuer or any Restricted Subsidiary of any Indebtedness of the Issuer or any Restricted Subsidiary; provided that such Indebtedness was permitted to be Incurred pursuant to this covenant other than under this clause (13); provided further that any such Guarantees by the Issuer or any Subsidiary Guarantor of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor is subordinated in right of payment to the obligations of the Issuer and the Subsidiary Guarantors under the Notes;
(14) Guarantees issued by the Issuer or any of its Restricted Subsidiaries of any Indebtedness of Joint Ventures or Unrestricted Subsidiaries Incurred from and after the Issue Date in an amount not to exceed the greater of $180.0 million and 2.5% of Adjusted Total Assets at any time outstanding, if both before and after giving effect to the incurrence of each such Guarantee, no Default or Event of Default has occurred or is continuing; provided, however, that, subject to clause (g), any Refinancing Incurred under clause (5) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (14) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (14);
(15) Indebtedness of the Issuer or any of its Restricted Subsidiaries supported by a letter of credit issued under any Credit Facilities in an aggregate principal amount not to exceed the stated amount of such letter of credit (but which stated amount may include the amount of any anticipated premiums, expenses (including upfront fees and original issue discount) and any accretion in the principal amount thereof);
(16) contractual indemnity obligations entered into by the Issuer or any of its Restricted Subsidiaries in the ordinary course of ownership or operation of their respective Properties;
(17) Indebtedness (A) of a Person outstanding on the date of any acquisition of such Person, including through the acquisition of a Person that becomes a Restricted Subsidiary or is acquired by, or merged or consolidated with or into, the Issuer or any Restricted Subsidiary, or that is assumed by the Issuer or any Restricted Subsidiary in connection with any such acquisition (other than Indebtedness incurred by such Person in connection with, or contemplation of, such acquisition, merger or consolidation), (B) Incurred to provide all or any portion of the funds utilized to acquire, or to consummate the transaction or series of related transactions in connection with or in contemplation of any acquisition, of a Person that becomes a Restricted Subsidiary, (C) assumed in connection with an asset acquisition by the Issuer or a Restricted Subsidiary or (D) Incurred in connection with any Investment in a third party permitted under this Indenture, in each case under this clause (17), as long as immediately after giving effect thereto, either (i) the Interest Coverage Ratio on a Pro Forma Basis would be at least 1.50 to 1.0 or (ii) the Interest Coverage Ratio on a Pro Forma Basis would be greater than or equal to the actual Interest Coverage Ratio immediately prior to such acquisition, incurrence or assumption, in each case under this clause (17), with the Interest Coverage Ratio calculated in accordance with clause (c) above;
(18) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, together with any other Indebtedness Incurred from and after the Issue Date pursuant to this clause (18) or clause (c) above by such Restricted Subsidiaries, in an amount not to exceed the greater of $500.0 million and an amount equal to 7.5% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding; provided, however, that, subject to clause (g), any Refinancing Incurred under clause (5) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (18) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (18);
Appears in 1 contract
Sources: Indenture (RLJ Lodging Trust)
Incurrence of Indebtedness. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount ratio of all outstanding consolidated Indebtedness of the Company Issuer and its the Restricted Subsidiaries on a consolidated basis would be greater than 65% of to Adjusted Total Assets as of any date of Incurrencewould exceed 0.60 to 1.00.
(b) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount ratio of all outstanding Subsidiary Indebtedness and consolidated Secured Indebtedness of the Company Issuer and its the Restricted Subsidiaries on a consolidated basis would be greater than 45% of to Adjusted Total Assets as of any date of Incurrencewould exceed 0.45 to 1.00.
(c) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the Interest Fixed Charge Coverage Ratio of the Company Issuer and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 2.00 to 1.0 1.0; provided that for purposes of calculating the Fixed Charge Coverage Ratio pursuant to this clause (c), for each of the first four (4) full Fiscal Quarters commencing with the Fiscal Quarter beginning on April 1, 2021, Consolidated EBITDA for any such Fiscal Quarter shall be calculated on a Pro Forma Basis)as the greater of (x) Consolidated EBITDA in such Fiscal Quarter and (y) zero; provided, further that, for so long as any Subsidiary of the Issuer Guarantees the Notes, the amount of additional Indebtedness that may be Incurred from and after the Issue Date by Restricted Subsidiaries that are not Subsidiary Guarantors under this clause (c) shall not exceed the greater of $150.0 million and an amount equal to 5.0% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding.
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company Issuer or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company Issuer or any of the Subsidiary Guarantors outstanding under the Initial Notes and the Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) the greater of $3,400.0 1,300.0 million plus (y) the aggregate principal and an amount equal to 30.0% of Adjusted Total Assets at any time outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company the Issuer or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company Issuer or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the CompanyIssuer, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law)Guarantor; and provided further that any event 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 Issuer or any other Restricted Subsidiary) shall will be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date[reserved];
(4) Indebtedness outstanding as of the Issue DateDate (including the Existing 2025 Notes but excluding Indebtedness described in clause (1) above);
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund refund, other outstanding Indebtedness that was incurred under the provisions of paragraph (other than clauses (1a), (2b) or (c) of this covenant or clauses (4), (65), (8), (9), (10), (1114), (17), (18), (24), (25), (27) and or (1328) of this Section 4.08(d)) , in an amount not to exceed the amount so Refinanced plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums premiums, customary reserves required to be funded and maintained in connection with such Indebtedness and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance” or a “Refinancing”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, Indebtedness will be permitted under this clause (5) only if:if (except in the case of COVID-19 Relief Funds and Refinancings thereof):
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes, if applicable; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the earlier of (i) the Stated Maturity of the Subordinated Indebtedness to be Refinanced, or (ii) the date that is 91 days after the Stated Maturity of the Notes, and the Average Life of such new Indebtedness is at least equal to the earlier of (1) the remaining Average Life of the Subordinated Indebtedness to be Refinanced, or (2) 91 days more than the Average Life of the Notes; and provided provided, further, that in no event may Indebtedness of the Company Issuer or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);
(6) (i) obligations (contingent or otherwise) existing or arising under any Hedging Obligations or Swap Contracts (including Secured Hedge Agreements) entered into for the purpose of mitigating risks associated with fluctuations in interest rates (including both fixed to floating and floating to fixed contracts), foreign exchange rates or commodity price fluctuations in a non-speculative manner and (ii) Indebtedness consisting of any Permitted Bond Hedge Transaction or any Permitted Warrant Transaction;
(7) Indebtedness under Secured Cash Management Agreements, cash pooling agreements with hotel management companies and in respect of netting services, any Overdraft Line and otherwise in connection with deposit accounts, commercial credit cards, stored value cards, purchasing cards and treasury management services, including any obligations pursuant to Cash Management Agreements, and other netting services, overdraft protections, automated clearing-house arrangements, employee credit card programs, controlled disbursement, ACH transactions, return items, interstate depository network service, Society for Worldwide Interbank Financial Telecommunication transfers, cash pooling and operational foreign exchange management, and in each case, similar arrangements and otherwise in connection with cash management, including cash management arrangements among the Issuer and its Subsidiaries;
(8) (A) Finance Leases, synthetic lease obligations, purchase money obligations or mortgage financings Incurred after the Issue Date and (B) Indebtedness secured by purchase money Liens, in an aggregate outstanding principal amount for clauses (A) and (B) on a combined basis Incurred from and after the Issue Date not to exceed the greater of $300.0 million and an amount equal to 10.0% of Adjusted Total Assets at any time outstanding; provided, however, that, subject to Section 4.08(g), any Refinancing Incurred under clause (5) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (8) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (8);
(9) Indebtedness of the Issuer, to the extent the net proceeds therefrom are promptly:
(A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change of Control Triggering Event; or
(B) deposited to defease or discharge the Notes pursuant to Articles 8 and 11 hereof;
(10) Indebtedness incurred in connection with any Sale and Leaseback Transaction;
(11) customer deposits and advance payments received from customers in the ordinary course of business;
(12) any Guarantee issued by the Issuer pursuant to the matters described in any indemnity agreements entered into for the benefit of a title company that has been engaged by the Issuer or any of its Restricted Subsidiaries;
(13) Guarantees by the Issuer or any Restricted Subsidiary of any Indebtedness of the Issuer or any Restricted Subsidiary; provided that such Indebtedness was permitted to be Incurred pursuant to this covenant other than under this clause (13); provided further that any such Guarantees by the Issuer or any Subsidiary Guarantor of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor is subordinated in right of payment to the obligations of the Issuer and the Subsidiary Guarantors under the Notes;
(14) Guarantees issued by the Issuer or any of its Restricted Subsidiaries of any Indebtedness of Joint Ventures or Unrestricted Subsidiaries Incurred from and after the Issue Date in an amount not to exceed the greater of $75.0 million and 2.5% of Adjusted Total Assets at any time outstanding, if both before and after giving effect to the incurrence of each such Guarantee, no Default or Event of Default has occurred or is continuing; provided, however, that, subject to Section 4.08(g), any Refinancing Incurred under clause (5) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (14) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (14);
(15) Indebtedness of the Issuer or any of its Restricted Subsidiaries supported by a letter of credit issued under any Credit Facilities in an aggregate principal amount not to exceed the stated amount of such letter of credit (but which stated amount may include the amount of any anticipated premiums, expenses (including upfront fees and original issue discount) and any accretion in the principal amount thereof);
(16) contractual indemnity obligations entered into by the Issuer or any of its Restricted Subsidiaries in the ordinary course of ownership or operation of their respective Properties;
(17) Indebtedness (A) of a Person outstanding on the date of any acquisition of such Person, including through the acquisition of a Person that becomes a Restricted Subsidiary or is acquired by, or merged or consolidated with or into, the Issuer or any Restricted Subsidiary, or that is assumed by the Issuer or any Restricted Subsidiary in connection with any such acquisition (other than Indebtedness incurred by such Person in connection with, or contemplation of, such acquisition, merger or consolidation), (B) Incurred to provide all or any portion of the funds utilized to acquire, or to consummate the transaction or series of related transactions in connection with or in contemplation of any acquisition of, a Person that becomes a Restricted Subsidiary, (C) assumed in connection with an asset acquisition by the Issuer or a Restricted Subsidiary or (D) Incurred in connection with any Investment in a third party permitted under this Indenture, in each case under this clause (17), as long as immediately after giving effect thereto, either (i) the Fixed Charge Coverage Ratio on a Pro Forma Basis would be at least 2.00 to 1.0 or (ii) the Fixed Charge Coverage Ratio on a Pro Forma Basis would be greater than or equal to the actual Fixed Charge Coverage Ratio immediately prior to such acquisition, incurrence or assumption, in each case under this clause (17), with the Fixed Charge Coverage Ratio calculated in accordance with Section 4.08(c);
(18) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, together with any other Indebtedness Incurred from and after the Issue Date pursuant to this clause (18) or Section 4.08(c) by such Restricted Subsidiaries, in an amount not to exceed the greater of $300.0 million and an amount equal to 10.0% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding; provided, however, that, subject to Section 4.08(g), any Refinancing Incurred under clause (5) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (18) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (18);
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur,” and “incurrence” shall have a correlative meaning) any Indebtedness if(including Acquired Debt); provided, immediately however, that so long as no Event of Default shall have occurred and be continuing, the Company and any Guarantor may incur Indebtedness (including Acquired Debt) if on the date of such incurrence and after giving effect thereto the Leverage Ratio would no be greater than 7.25 to 1.0. The first paragraph of this Section 4.9 shall not prohibit the Incurrence incurrence of such any of the following items of Indebtedness (collectively, “Permitted Debt”):
(i) the incurrence by the Company and any Restricted Subsidiary of Indebtedness and the receipt and application letters of the proceeds therefrom, the credit under one or more Credit Facilities in an aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of at any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors one time outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith this clause (i) (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face maximum potential liability of the Company and the Restricted Subsidiaries thereunder) not to exceed $30.0 million;
(ii) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company and the Guarantors of Indebtedness represented by the Notes (other than Additional Notes) and the related Guarantees to be issued on the Issue Date and the Exchange Notes and the related Guarantees to be issued in exchange therefor pursuant to the Registration Rights Agreement;
(iv) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness (including Capital Lease Obligations) incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation, repair, or improvement of property (real or personal), plant or equipment (including through the purchase of Equity Interests of a Person up to the amount thereof)of the fair market value of such assets held by such Person) used in a Permitted Business, in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), iv) not to exceed $5.0 million (or the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion equivalent thereof, at the aggregate amount time of feesincurrence, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancingapplicable foreign currency);
(2v) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced the incurrence by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the of its Restricted Subsidiaries of Permitted Refinancing Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extendrefund, refinance, defease, renew, replaceextend or replace Indebtedness, defease, discharge or refund other outstanding Indebtedness (other than clauses intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries, that was permitted by the Indenture to be incurred under the first paragraph of this Section 4.9 or clause (1ii), (2iii), (6iv), (10v), (11xiii) and or (13xv) of this Section 4.08(d)paragraph;
(vi) plus the aggregate amount incurrence by the Company or any of feesits Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, underwriting discountshowever, accrued that:
(a) if the Company or any Guarantor is the obligor on such Indebtedness and unpaid interestthe payee is not the Company or a Guarantor, premiums and other costs and expenses Incurred such Indebtedness must be expressly subordinated to the prior payment in connection full in cash of all Obligations with respect to the Notes, in the case of the Company, or such refinancing Guarantee, in the case of a Guarantor; and
(i) any subsequent issuance or transfer of Equity Interests that results in any such actionIndebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company, (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company or (iii) the designation of a Restricted Subsidiary which holds Indebtedness as an Unrestricted Subsidiary shall be deemed, in each case, to “Refinance”)constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, in an amount as the case may be, that was not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under by this clause (5) only if:vi);
(Avii) such new Indebtedness, by its terms or the incurrence by the terms Company or any of its Restricted Subsidiaries of Hedging Obligations;
(viii) the guarantee by the Company or any agreement of the Guarantors of Indebtedness of the Company or instrument pursuant any Restricted Subsidiary of the Company; provided that, in each case, the Indebtedness was permitted to which be incurred by another provision of this Section 4.9; provided further that in the event such new Indebtedness that is issued or remains outstanding, being guaranteed is expressly made subordinate (a) pari passu in right of payment to the Notes at least to or any Guarantee, then the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks related guarantee shall rank equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicablethe case may be, or (b) subordinated in right of payment to the Notes or any Guarantee, then the related guarantee shall be Refinanced by means subordinated in right of payment to the same extent to the Notes or such Guarantee, as the case may be;
(ix) Indebtedness arising from agreements of the Company or a Restricted Subsidiary of the Company providing for indemnification, adjustment of purchase price, deferred payment, earn out or similar obligations, in each case, incurred or assumed in connection with the disposition or acquisition of any business or assets of the Company or a Restricted Subsidiary;
(x) Indebtedness incurred in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, letters of credit (not supporting Indebtedness for borrowed money), performance, surety, appeal and similar bonds and completion guarantees or similar obligations provided by the Company or a Guarantor in the ordinary course of business;
(xi) Indebtedness arising from (a) agreements of the Company or any Restricted Subsidiary of the Company pursuant to which the Company or any such Restricted Subsidiary incurs an indemnification obligation or (b) 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 of the later of such honoring or notice thereof;
(xii) obligations with respect to letters of credit issued in the ordinary course of business and securing obligations for trade payables to the extent such letters of credit are not drawn;
(xiii) Indebtedness of a Person incurred and outstanding on or prior to the date on which such Person was acquired by the Company or any Restricted Subsidiary of the Company or merged into the Company or a Restricted Subsidiary of the Company in accordance with the terms of this Indenture; provided that such Indebtedness is not incurred in connection with or in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate, such acquisition or merger; and provided further that after giving pro forma effect to such incurrence of Indebtedness and acquisition either (A) the Company would have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the first paragraph of this Section 4.9 or (B) the Leverage Ratio immediately prior to such acquisition is no less than the Leverage Ratio after giving pro forma effect to such incurrence of Indebtedness and acquisition;
(xiv) Indebtedness of the Company or any Restricted Subsidiary to the extent the proceeds of such Indebtedness are deposited and used to defease or satisfy the Notes as described under Articles VIII and XI;
(xv) Contribution Indebtedness;
(xvi) the incurrence of Indebtedness by a Securitization Entity in connection with a Qualified Securitization Transaction that is Non-Recourse Debt with respect to the Company and its Restricted Subsidiaries; provided, however, that in the event such Securitization Entity ceases to qualify as a Securitization Entity or such Indebtedness ceases to constitute such Non-Recourse Debt, such Indebtedness will be deemed, in each case, to be Incurred at such time; and
(xvii) the incurrence by the Company or any Restricted Subsidiary of the Company of additional Indebtedness, together with the amount of any other outstanding Indebtedness incurred pursuant to this clause (xvii), in an aggregate principal amount (or accreted value, as applicable) not to exceed $15.0 million (or the equivalent thereof, at the time of incurrence, in the applicable foreign currency). For purposes of determining compliance with this Section 4.9, in the event that an item of proposed Indebtedness (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to the first paragraph of this Section 4.9, the Company shall be permitted to classify all or a portion of that item of Indebtedness on the date of its incurrence in its sole discretion (or on a later date reclassify in whole or in part so long as such Indebtedness is permitted to be incurred pursuant to such provision at the time of reclassification) in any manner that complies with this Section 4.9 (and any portion of an item of Indebtedness to be incurred and classified as Permitted Debt on a particular date shall not be included in the calculation of the Leverage Ratio in determining the amount of Indebtedness that may be incurred on the same date pursuant to the first paragraph of this Section 4.9); provided that Indebtedness outstanding under the Credit Agreement on the Issue Date shall initially be deemed to have been incurred in reliance on the exception provided by clause (i) of the second paragraph of this Section 4.9. Notwithstanding any other provision of this Section 4.9, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary of the Company 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. Accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms and the payment of dividends on Disqualified Stock or preferred stock of a Restricted Subsidiary that is not a Subsidiary Guarantor pursuant in the form of additional shares of the same class of Disqualified Stock or preferred stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred stock for purposes of this clause (5);Section 4.9.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness directly or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries toindirectly, Incur any Indebtedness if(including Acquired Debt); provided, after giving effect to however, that the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company Issuer or any of its Restricted Subsidiaries may Incur each and Indebtedness (including Acquired Debt) if all of the followingbelow are satisfied:
(1i) the Consolidated Fixed Charge Coverage Ratio for the Issuer’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is Incurred would have been at least 2.0:1.0, determined on a pro forma basis (including a pro forma application of the Company net proceeds therefrom), as if the additional Indebtedness had been Incurred at the beginning of such four-quarter period;
(ii) immediately following the incurrence of such Indebtedness, the Consolidated Total Net Leverage Ratio of the Issuer does not exceed 3.5 to 1.0; and
(iii) no Default or Event of Default shall have occurred and be continuing.
(b) Notwithstanding the foregoing, Section 6.10(a) will not prohibit the Incurrence of any of the Subsidiary Guarantors outstanding following (collectively, “Permitted Debt”):
(i) the Incurrence by the Issuer and any Guarantor of Indebtedness under the Commercial Bank Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or Facility in connection therewith an aggregate principal amount (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face maximum potential liability of the Issuer and any Guarantor thereunder) that, at the time of and after giving effect to such Incurrence and all other Incurrences made under this clause (i) since the Issue Date and which remain outstanding, does not exceed $25 million; provided that, (i) immediately following the incurrence of such Indebtedness, the Consolidated Secured Net Leverage Ratio of the Issuer does not exceed 2.0 to 1.0; and (ii) such Commercial Bank Credit Facility is subject to an Intercreditor Agreement consented to pursuant to a Supermajority Consent;
(ii) the Incurrence by the Issuer and any Guarantor of Indebtedness that ranks pari passu with the Notes and the Guarantees secured by Liens on the Collateral, including all Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred pursuant to this clause (ii), not to exceed the greater of (i) $60 million (consisting as of the Issue Date, Existing Term Loan Indebtedness (in such amount, the “Remaining TL Debt”)) or (ii) an amount thereofsuch that immediately following the incurrence of such Indebtedness and Liens, the Consolidated Secured Net Leverage Ratio does not exceed 3.0 to 1.0; provided that, (x) such Indebtedness (other than Additional Notes issued hereunder) is subject to an Intercreditor Agreement with Supermajority Consent and (y) any refinancing of the Remaining TL Debt shall only be from the proceeds of Additional Notes issued hereunder;
(iii) the Incurrence of Attributable Debt (in the case of Sale/Leaseback Transactions, incurred after the Issue Date), Capital Lease Obligations, Purchase Money Obligations or other Indebtedness, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation, development or improvement of property, plant or equipment used in the business of the Issuer or any of its Restricted Subsidiaries, including in respect of (a) retail locations for dispensaries, (b) cultivation and/or manufacturing facilities, or (c) equipment that will be used at dispensaries and/or cultivation and manufacturing facilities, including all Permitted Refinancing Indebtedness that is Incurred to refund, refinance or replace any Indebtedness that is Incurred pursuant to this clause (iii), in an aggregate principal amount at any one time outstanding not to exceed the sum greater of (1i) 7.5% of Consolidated Net Tangible Assets at the time of such Incurrence or (xii) $3,400.0 million plus 35 million;
(yiv) the Incurrence of Non-Recourse Mortgage Debt in an aggregate principal amount of at any outstanding Incremental Term Loans (provided that after giving pro forma effect time outstanding, including all Permitted Refinancing Indebtedness Incurred to refund, refinance, defease, discharge or replace any such incurrences of Indebtedness Incurred pursuant to this clause (yiv), not to exceed the Company greater of (i) $50 million or (ii) 3.0% of Consolidated Net Tangible Assets at the time of such Incurrence; provided that, the Issuer or any Third Party Agent may require the entering into, and the Trustee and the Collateral Trustee shall upon such requirement enter into, an Intercreditor Agreement in respect thereof;
(v) the Incurrence of Existing Indebtedness;
(vi) the Incurrence by the Issuer and the Guarantors of Indebtedness represented by the Notes and the Guarantees, in each case, issued on the Issue Date and any Guarantee provided subsequent to the Issue Date;
(vii) the Incurrence by the Issuer or any Restricted Subsidiary of the Issuer of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease or discharge Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be Incurred under Section 6.10(a) or clauses (ii), (iii), (iv), (v), (vi), (xii) or (xiii) of Section 6.10(b);
(viii) the Incurrence by the Issuer or any of its Restricted Subsidiaries are in compliance with paragraphs (a) of intercompany Indebtedness owing to and (b) above) plus (2) in held by the case of any refinancing of any Indebtedness permitted under this clause (1) Issuer or any portion thereofof its Restricted Subsidiaries; provided, the aggregate amount of feeshowever, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed tothat:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company Issuer or any Subsidiary Guarantor is an obligorthe obligor on such Indebtedness, such Indebtedness must be unsecured and expressly subordinated to the Indebtedness is subordinated prior payment in right full in cash of payment all Obligations with respect to the Notes, in the case of the CompanyIssuer, or the Note any Guarantee, in the case of a Subsidiary Guarantor Guarantor;
(except B) such Indebtedness owed to the extent prohibited by applicable Gaming Law); and provided further Issuer or any Guarantor must be unsubordinated obligations, unless the obligor under such Indebtedness is the Issuer or a Guarantor;
(C) if the Issuer or a Restricted Subsidiary is the obligor on such Indebtedness (1) any subsequent issuance or transfer of Equity Interests that any event which results in any such Restricted Subsidiary ceasing to be Indebtedness being held by a Person other than the Issuer or a Restricted Subsidiary thereof and (2) any sale or any subsequent other transfer of any such Indebtedness (other than to a Person that is not either the Company Issuer or any other a Restricted Subsidiary) shall Subsidiary thereof, will be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Issuer or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (2)(Bviii);
(3ix) the Notes guarantee by the Issuer or any of the Guarantors of Indebtedness of the Issuer or any Restricted Subsidiary of the Issuer that was permitted to be issued on the Issue DateIncurred by another provision of this covenant;
(4x) the Incurrence by the Issuer or any of its Restricted Subsidiaries of Hedging Obligations for the purpose of managing the Issuer’s or any Restricted Subsidiary’s exposure to fluctuations in interest rates with respect to Indebtedness outstanding as permitted to be incurred hereunder in the ordinary course of the Issue Datebusiness and not for speculative purposes;
(5xi) the Incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance bonds, completion bonds, bid bonds, appeal bonds and surety bonds or other similar bonds or obligations, and any guarantees or letters of credit functioning as or supporting any of the foregoing, in each case provided by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business;
(xii) the Incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business and guarantees of payment; provided that, upon the drawing of such letters of credit or the Incurrence of such Indebtedness, such obligations are reimbursed within one year following such drawing or Incurrence;
(xiii) the Incurrence by the Issuer or any of its Restricted Subsidiaries of Permitted Acquisition Indebtedness;
(xiv) any indemnification obligation, adjustment of purchase price or similar obligation incurred in connection with the consummation of one or more acquisitions permitted by the terms hereof;
(xv) the Incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business; provided that, upon the drawing of such letters of credit or the Incurrence of such Indebtedness, such obligations are reimbursed within one year following such drawing or Incurrence;
(xvi) the Incurrence of Indebtedness representing deferred compensation to directors, officers, members of management or employees (in their capacities as such) of the Issuer or any of its Restricted Subsidiaries and Incurred in the ordinary course of business;
(xvii) the Incurrence of Indebtedness issued by Issuer or any of its Restricted Subsidiaries to any current or former officer, director or employee (or any of their respective heirs or estates or permitted transferees) of the Issuer or any Restricted Subsidiary to finance the purchase or redemption of Equity Interests not to exceed $5 million;
(xviii) the incurrence by the Issuer or any Restricted Subsidiary of a Limited Recourse Guarantee; or
(xix) the Incurrence by the Issuer or any of its Restricted Subsidiaries of additional Indebtedness not otherwise permitted under Section 6.10(b)(i) through (xviii) in exchange foran aggregate amount at any time outstanding, or the net proceeds of which are used including all Permitted Refinancing Indebtedness that is Incurred to extendrefund, refinance, renew, replace, defease, discharge or refund other outstanding replace any Indebtedness (other than clauses (1that is Incurred pursuant to this Section 6.10(b)(xix), not to exceed the greater of (2), A) $25.0 million or (6), (10), (11B) and (13) of this Section 4.08(d)) plus the amount equal to 0.3 multiplied by the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed Consolidated EBITDA for the amount so Refinanced; provided that Indebtedness, most recently completed twelve fiscal months of the proceeds of Issuer for which the internal financial statements are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by available immediately preceding the terms of any agreement or instrument pursuant to date on which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);Incurred.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, incur any Indebtedness ifIndebtedness; provided that the Company or any Subsidiary Guarantor may incur additional Indebtedness, immediately in each case, if after giving pro forma effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromof the Indebtedness, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 at least 2.00 to 1.0 (calculated on a Pro Forma Basis)1.00.
(db) Notwithstanding The provisions of Section 4.09(a) will not prohibit the incurrence by the Company and its Restricted Subsidiaries of any of the following items of Indebtedness (collectively, “Permitted Indebtedness”):
(1) Indebtedness outstanding on the Issue Date, including the Existing Notes (other than Indebtedness described in clauses (a), (b3) and (c12) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:below);
(12) Indebtedness of the Company or any a Restricted Subsidiary incurred for the making of expenditures for the improvement or repair, to the extent the improvements or repairs may be capitalized in accordance with GAAP, or additions, including by way of acquisitions of businesses and related assets, to the property and assets of the Subsidiary Guarantors outstanding under Credit Facilities Company and its Restricted Subsidiaries, including, without limitation, the issuance acquisition of assets subject to operating leases, or creation of letters of credit and bankers’ acceptances thereunder or Indebtedness incurred by assumption in connection therewith (with letters additions, including additions by way of credit acquisitions or capital contributions of businesses and bankers acceptances being deemed to have a principal amount equal related assets, to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed property and assets of the sum of (1) (x) $3,400.0 million plus (y) Company and its Restricted Subsidiaries; provided that the aggregate principal amount of any outstanding Incremental Term Loans this Indebtedness (provided that after giving pro forma effect when taken together with Permitted Refinancing Indebtedness incurred pursuant to any such incurrences clause (6) below in respect of Indebtedness pursuant to originally incurred under this clause (y2), ) outstanding at any time may not exceed the Company and its Restricted Subsidiaries are in compliance with paragraphs greater of (a) $75 million and (b) above) plus (2) in 2.5% of Consolidated Net Tangible Assets determined on the case date of any refinancing incurrence of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancingIndebtedness;
(23) Indebtedness owed to:
(A) The of the Company or a Restricted Subsidiary Guarantor evidenced by an unsubordinated promissory note; orowing in respect of any Accounts Receivable Securitization;
(B4) any other Restricted Subsidiary; provided that if Indebtedness of the Company owed to the General Partner or any Subsidiary Guarantor an affiliate of the General Partner that is an obligor, the Indebtedness unsecured and that is subordinated in right of payment to the Notes, in ; provided that the case aggregate principal amount of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such this Indebtedness (other than when taken together with Permitted Refinancing Indebtedness incurred pursuant to the Company or any other Restricted Subsidiaryclause (6) shall be deemed, below in each case, to constitute an Incurrence respect of such Indebtedness not permitted by originally incurred under this clause (2)(B4);
(3) outstanding at any time under this clause may not exceed $50 million and this Indebtedness has a final maturity date later than the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as final maturity date of the Issue DateNotes;
(5) Indebtedness issued owed by the Company to any Subsidiary Guarantor or owed by any Subsidiary Guarantor to the Company or to any other Subsidiary Guarantor or owed by any Non-Guarantor Subsidiary to any other Non-Guarantor Subsidiary;
(6) Permitted Refinancing Indebtedness incurred in exchange forrespect of Indebtedness incurred as permitted under the Consolidated Fixed Charge Coverage Ratio test set forth in Section 4.09(a), or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than and clauses (1), (2)) and (4) above, this clause (6), ) and clauses (10)8), (11) and (13) below;
(7) the incurrence by the Company or a Restricted Subsidiary of this Indebtedness owing directly to its insurance carriers, without duplication, in connection with the Company’s, its Subsidiaries’ or its affiliates’ self-insurance programs or other similar forms of retained insurable risks for their respective businesses, consisting of reinsurance agreements and indemnification agreements, and Guarantees of the foregoing, secured by letters of credit; provided that any Consolidated Fixed Charges associated with the Indebtedness evidenced by such reinsurance agreements, indemnification agreements, Guarantees and letters of credit will be included, without duplication, in any determination of the Consolidated Fixed Charge Coverage Ratio test set forth in Section 4.08(d4.09(a);
(a) plus Indebtedness in respect of Capital Lease Obligations related to truck and other vehicle fleet leasing in the ordinary course of business; provided that the aggregate amount of feesthis Indebtedness (when taken together with Permitted Refinancing Indebtedness incurred pursuant to clause (6) above in respect of Indebtedness originally incurred under this clause (8)(a)) outstanding at any time may not exceed $80 million and (b) Indebtedness of the Company and its Restricted Subsidiaries in respect of Capital Lease Obligations (not including any Indebtedness incurred pursuant to clause (8)(a) above); provided that the aggregate amount of this Indebtedness (when taken together with Permitted Refinancing Indebtedness incurred pursuant to clause (6) above in respect of Indebtedness originally incurred under this clause (8)(b)) outstanding at any time may not exceed $5 million;
(9) Indebtedness of the Company and its Restricted Subsidiaries represented by letters of credit supporting (a) obligations under workmen’s compensation laws, underwriting discounts(b) obligations to suppliers of propane or energy commodity derivative providers in the ordinary course of business consistent with past practices, accrued not to exceed $15 million at any one time outstanding and unpaid interest(c) the repayment of Indebtedness permitted to be incurred under this Indenture;
(10) bid, premiums appeal, reimbursement, performance, surety and other costs similar bonds and expenses Incurred completion guarantees issued or provided by, or for the account of, the Company or a Restricted Subsidiary (a) in the ordinary course of business, (b) in connection with the enforcement of rights or claims of the Company or any of its Subsidiaries or (c) in connection with judgments that do not result in a Default or Event of Default, and any Guarantees or obligations with respect to letters of credit functioning as or supporting any of the foregoing bonds or obligations and workers’ compensation claims in the ordinary course of business;
(11) Indebtedness of the Company or its Restricted Subsidiaries incurred in connection with business acquisitions in favor of the sellers of such refinancing (any such action, to “Refinance”), businesses in an aggregate principal amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds $70 million at any one time outstanding (including any Permitted Refinancing Indebtedness incurred pursuant to clause (6) above in respect of which are used to Refinance Subordinated Indebtedness, will be permitted Indebtedness incurred under this clause (511)) only if:determined on the date of incurrence of such Indebtedness; provided that the principal amount of such Indebtedness incurred in connection with any such acquisition shall not exceed the Fair Market Value of the assets so acquired;
(A12) such new Indebtedness, by its terms or the Notes (other than any Additional Notes) and the Note Guarantees;
(13) the incurrence by the terms Company or its Restricted Subsidiaries of Permitted Acquisition Indebtedness;
(14) liability of the Company or any Restricted Subsidiary in respect of Indebtedness of any agreement Unrestricted Subsidiary or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least any Joint Venture but only to the extent that such liability is the result of the pledge of Capital Stock in such Unrestricted Subsidiary or Joint Venture held by the Company or such Restricted Subsidiary to secure such Indebtedness to be Refinanced is subordinated and solely to the Notes; andextent such Indebtedness constitutes Non-Recourse Debt;
(B15) such new Indebtedness, determined as the incurrence by the Company or its Restricted Subsidiaries of Indebtedness consisting of the date financing of Incurrence of such new Indebtedness, does not mature prior to insurance premiums in customary amounts consistent with the Stated Maturity operations and business of the Subordinated Indebtedness to be Refinanced, Company and the Average Life of such new Indebtedness is at least equal to Restricted Subsidiaries;
(16) the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of Guarantee (a) by the Company or a Subsidiary Guarantor of Indebtedness of the Company, Finance Corp. or a Subsidiary Guarantor or (b) by a Non-Guarantor Subsidiary of Indebtedness of (i) a Non-Guarantor Subsidiary or (ii) the Company, Finance Corp. or a Subsidiary Guarantor (provided, in the case of this clause (ii), that ranks equally such Non-Guarantor Subsidiary becomes a Subsidiary Guarantor in a timely manner in accordance with or subordinate Section 4.18), in right each case, that was permitted to be incurred by another provision of payment this Section 4.09;
(17) the incurrence of Indebtedness by any of the Issuers and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Legal Defeasance or Covenant Defeasance in accordance with Article 8 or satisfy and discharge this Indenture in accordance with Section 12.01;
(18) the incurrence of any obligations to any lender in respect of treasury management arrangements, depositary or other cash management services, including any treasury management line of credit;
(19) the incurrence of in-kind obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business; and
(20) additional Indebtedness of the Issuers or Subsidiary Guarantors in an aggregate outstanding amount not to exceed the greater of (a) $50 million and (b) 5% of Consolidated Net Tangible Assets determined on the date of incurrence of such Subsidiary Guarantor’s Note GuaranteeIndebtedness.
(c) For purposes of determining compliance with this Section 4.09:
(1) in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness or is entitled to be incurred in compliance with the Consolidated Fixed Charge Coverage Ratio in Section 4.09(a), the Company may, in its sole discretion, classify (or later reclassify) in whole or in part such items of Indebtedness in any manner that complies with this Section 4.09, and such item of Indebtedness or a portion thereof may be classified (or later reclassified) in whole or in part as applicablehaving been incurred under more than one of the applicable clauses of Permitted Indebtedness or in compliance with the Consolidated Fixed Charge Coverage Ratio in Section 4.09 (a); provided, however, that any Indebtedness Incurred under clause (3) of Section 4.09(b) may not be Refinanced by means reclassified in the future.
(2) The “amount” or “principal amount” of any Indebtedness or Preferred Stock or Redeemable Capital Stock outstanding at any time of determination as used herein shall be as set forth below or, if not set forth below, determined in accordance with GAAP:
(A) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(B) the principal amount of the Indebtedness, in the case of any other Indebtedness;
(C) 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;
(D) in the case of any Capital Lease Obligation, the amount of Indebtedness represented by such obligation being the capitalized amount of such obligation determined in accordance with GAAP, and the stated maturity thereof being the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by the lessee without payment of a penalty;
(E) in the case of any Redeemable Capital Stock, as specified in the definition thereof;
(F) in the case of all other unconditional obligations, the amount of the liability thereof determined in accordance with GAAP; and
(G) in the case of all other contingent obligations, the maximum liability at such date of such Person.
(d) The Company will not permit any of its Unrestricted Subsidiaries to Incur any Indebtedness or issue any shares of Redeemable Capital Stock, other than Non-Recourse Debt. If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary that is not a at such time shall be deemed to be Incurred by such Subsidiary Guarantor pursuant to as of such time for purposes of this clause (5);Section 4.09.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur any Indebtedness ifIndebtedness, immediately after giving effect to other than the Loan; provided, however, that if no Default or Event of Default shall have occurred and be continuing at the time, or would occur as a consequence, of the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, the aggregate principal amount of all outstanding Indebtedness of the Company Borrower and its any Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Subsidiary may Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness on a pro forma basis and the receipt and application of the proceeds therefrom, immediately thereafter the Interest Coverage Consolidated Leverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than zero and less than 2.0 or equal to 1.0 (calculated on a Pro Forma Basis)4.5 to 1.
(db) Notwithstanding clauses (a)the foregoing, (b) the Borrower, and (cexcept as specified below) of this Section 4.08any Restricted Subsidiary, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1i) Indebtedness existing on the date hereof;
(ii) Indebtedness Incurred by Subsidiary Guarantees pursuant to Clause 14.14 (Issuances of Guarantees by Restricted Subsidiaries);
(iii) Indebtedness of any Controlled Restricted Subsidiary owing to and held by the Company or any Borrower, Indebtedness of the Borrower owing to and held by any Controlled Restricted Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount Indebtedness of any outstanding Incremental Term Loans (provided that after giving pro forma effect Controlled Restricted Subsidiary of the Borrower owing to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced held by an unsubordinated promissory note; or
(B) any other Controlled Restricted Subsidiary; provided that if the Company any subsequent issuance or transfer of any Capital Stock or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any other event which results in any such Controlled Restricted Subsidiary ceasing to be a Controlled Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company Borrower or any other a Controlled Restricted Subsidiary) shall be deemed, in each case, to constitute an the Incurrence of such Indebtedness not permitted by this clause (2)(Biii); provided, further, that Indebtedness of the Borrower owing to and held by a Controlled Restricted Subsidiary must be unsecured and expressly subordinated to the prior payment in full in cash of all payment obligations with respect to the Loan under this Agreement;
(iv) Indebtedness under Currency Agreement and Interest Rate Agreements; provided that such agreements (1) are entered into solely for bona fide hedging purposes of the Borrower or its Restricted Subsidiaries to protect the Borrower or the Restricted Subsidiary, as the case may be, against fluctuations in foreign currency exchange rates or interest rates (as determined in good faith by the Board of Directors or senior management of the Borrower), (2) correspond at the time of Incurrence in terms of notional amount, duration, currencies and interest rates, as applicable, substantially to Indebtedness of the Borrower or its Restricted Subsidiaries Incurred without violation of this Agreement or to business transactions of the Borrower or its Restricted Subsidiaries on customary terms entered into in the ordinary course of business and (3) do not increase Indebtedness of the Notes to be issued on Borrower or any Restricted Subsidiary outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates, as the Issue Datecase may be;
(v) Indebtedness (1) Incurred in respect of workers’ compensation claims and self-insurance obligations provided by the Borrower or a Restricted Subsidiary in the ordinary course of business, (2) Incurred in respect of performance, surety, appeal and similar bonds, bankers’ acceptances, letters of credit or bills of exchange provided by the Borrower or a Restricted Subsidiary in the ordinary course of business and that do not secure other Indebtedness, (3) arising from agreements of the Borrower 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 Capital Stock of a Restricted Subsidiary; provided that, the maximum aggregate liability in respect of all Indebtedness Incurred under this clause (3) shall at no time exceed the gross proceeds actually received by the Borrower and its Restricted Subsidiaries in connection with such disposition (except in the case of the indemnification provided by the Borrower under the VimpelCom-Region Primary Agreement), (4) arising from the honouring 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 the Indebtedness outstanding as Incurred under this clause (4) is extinguished within five Business Days of Incurrence; provided, further, that the Issue Date;
Indebtedness Incurred under clause (4) of this Clause 14.7(b)(v) may not exceed, in an aggregate principal amount at any one time outstanding, $15 million (or the equivalent in another currency), or (5) Indebtedness issued Incurred by the Borrower in exchange for, or rubles solely for the net proceeds purpose of which are used making its capital contribution to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), VimpelCom-Region in an aggregate amount not to exceed the amount so Refinanced▇▇▇▇▇ equivalent of the lesser of (x) the Borrower’s actual capital contribution to VimpelCom-Region on the terms and subject to the conditions set forth in Article II of the VimpelCom-Region Primary Agreement and (y) $117 million; provided that the Indebtedness Incurred under clause (5) of this Clause 14.7(b)(v) is extinguished within five Business Days of Incurrence;
(vi) Refinancing Indebtedness; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtednessrefinance or refund the Loan or Indebtedness that is equal in right of payment with, will or subordinated in right of payment to, the Loan, shall only be permitted under this clause (5Clause 14.7(b)(vi) only if:
(A1) the Loan is refinanced in part or the Indebtedness to be refinanced is equal in right of payment with the Loan, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is made equal in right of payment with, or subordinated in right of payment to, the outstanding amounts under the Loan, respectively;
(2) the Indebtedness to be refinanced is subordinated in right of payment to the Loan, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes Loan at least to the extent that the Indebtedness to be Refinanced refinanced is subordinated to the NotesLoan; and
(B3) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinancedrefinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinancedrefinanced or refunded and does not permit redemption or other retirement of such Indebtedness at the option of the holder thereof prior to the Stated Maturity of the Indebtedness being refinanced; and provided provided, further, that in no event may any Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced refinanced by means of any Indebtedness of any Restricted Subsidiary that is was not a Subsidiary Guarantor an obligor under the refinanced Indebtedness pursuant to this clause (5Clause 14.7(b)(vi);
(vii) Indebtedness under one or more Credit Facilities in an aggregate principal amount at any one time outstanding not to exceed $100 million (or the equivalent in another currency), less the aggregate amount of all permanent reduction of Indebtedness (and a permanent reduction of the related commitments to lend or amount to be reborrowed in the case of a revolving credit facility) under such Credit Facilities by the Borrower or any of its Restricted Subsidiaries pursuant to Clause 14.9(b) hereof; and
(viii) Indebtedness in an aggregate principal amount up to $25 million (or the equivalent in another currency) Incurred in connection with the Borrower or a Restricted Subsidiary exercising its call on Preferred Stock of the Borrower owned by Eco Telecom Limited pursuant to Section 7.04 of the VimpelCom Primary Agreement.
Appears in 1 contract
Sources: Loan Agreement (Open Joint Stock Co Vimpel Communications)
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness if(including Acquired Debt); provided, however, that the Company and any Guarantor may incur Indebtedness (including Acquired Debt) if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately after giving effect preceding the date on which such additional Indebtedness is incurred would have been at least 2.0 to the Incurrence of such Indebtedness and the receipt and 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the aggregate principal amount additional Indebtedness had been incurred at the beginning of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrencesuch four-quarter period.
(b) The Company will not, and will Section 4.09(a) above shall not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the followingprohibit:
(1) Indebtedness of the incurrence by the Company or and any Guarantor of the Subsidiary Guarantors outstanding under Credit Facilities additional Indebtedness and the issuance or creation of letters of credit and bankers’ acceptances thereunder under one or more Credit Agreements in connection therewith an aggregate principal amount at any one time outstanding under this clause (1) (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed the greater of (x) $100.0 million and (y) the Borrowing Base, less the aggregate amount thereof)of all Net Proceeds of Asset Sales applied by the Company or any of its Restricted Subsidiaries since the Issue Date to repay any term Indebtedness under a Credit Agreement or to repay any revolving credit Indebtedness under a Credit Agreement and effect a corresponding commitment reduction thereunder pursuant to Section 4.10 ;
(2) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Company and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees to be issued on the Issue Date and the Exchange Notes and the related Subsidiary Guarantees to be issued under this Indenture in exchange therefor pursuant to the Registration Rights Agreement;
(4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings, purchase money or other similar obligations with respect to assets other than Capital Stock or other Investments, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, use, installation or improvement of property, plant or equipment used in a Permitted Business, and Attributable Debt, in an aggregate principal amount at any one time outstanding not to exceed the sum greater of (1) (x) $3,400.0 7.5 million plus and (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case 1.0% of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date’s Consolidated Net Tangible Assets;
(5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to extendrenew, refund, refinance, renewdischarge, replace, defease, discharge defease or refund other outstanding replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a) or clauses (1), (2), (63), (104), (115) and or (1312) of this Section 4.08(d4.09(b);
(6) plus the aggregate amount incurrence by the Company or any of feesits Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, underwriting discountshowever, accrued that:
(a) if the Company or any Guarantor is the obligor on such Indebtedness and unpaid interestthe payee is not the Company or a Guarantor, premiums and 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 such Subsidiary Guarantee, in the case of a Guarantor; and
(b) any subsequent issuance or transfer of Equity Interests or any other costs and expenses Incurred event that results in connection with such refinancing (any such actionIndebtedness being beneficially held by a Person other than the Company or a Restricted Subsidiary of the Company, (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company or a Restricted Subsidiary of the Company or (iii) the designation of a Restricted Subsidiary which holds Indebtedness as an Unrestricted Subsidiary, will be deemed, in each case, to “Refinance”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 (6), in an amount not ;
(7) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations;
(8) the Guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to exceed the amount so Refinancedbe incurred by another provision of this covenant; provided that Indebtedness, if the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause Indebtedness being guaranteed is (5a) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate pari passu in right of payment to the Notes at least to or any Subsidiary Guarantee, then the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks related Guarantee shall rank equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicablethe case may be, or (b) subordinated in right of payment to the Notes or any Subsidiary Guarantee, then the related Guarantee shall be Refinanced subordinated in right of payment to the same extent to the Notes or such Subsidiary Guarantee, as the case may be;
(9) the incurrence of Indebtedness by means the Company or any of its Restricted Subsidiaries 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) in the ordinary course of business inadvertently drawn against insufficient funds, provided, however, that such Indebtedness is extinguished within five Business Days after incurrence;
(10) the incurrence of Indebtedness by the Company or any of its Restricted Subsidiaries incurred in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance, standby letters of credit, statutory clauses of lessors, licensees, contractors, franchisees or customers, surety and similar bonds and completion guarantees provided by the Company or any of its Restricted Subsidiaries, in each case, in the ordinary course of business;
(11) the incurrence of Indebtedness by the Company or any of its Restricted Subsidiaries arising from any agreement of the Company or any Restricted Subsidiary providing for indemnities, guarantees, purchase price adjustments, earn-outs, letters of credit, surety bonds, performance bonds, holdbacks, contingency payment obligations based on the performance of the acquired or disposed assets or similar obligations (other than guarantees of Indebtedness) incurred by any Person in connection with the disposition of assets of the Company or any Restricted Subsidiary, including, without limitation, any Capital Stock of any Restricted Subsidiary that of the Company;
(12) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt related to the acquisition of a Permitted Business or an asset used in a Permitted Business if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of such incurrence of Acquired Debt determined immediately after giving effect to such incurrence and the related acquisition (including through a merger, consolidation or otherwise) is equal to or greater than the Fixed Charge Coverage Ratio of the Company determined immediately before giving effect to such incurrence and the related acquisition;
(13) Indebtedness of (i) Foreign Subsidiaries of the Company incurred not to exceed at any one time outstanding and together with any other Indebtedness incurred under this clause (13) the greater of (x) $5.0 million and (y) 1.0% of the Consolidated Net Tangible Assets of the Company and (ii) Indebtedness of Unifi do Brasil, Ltda in an aggregate principal amount at any time outstanding not to exceed $12.0 million, which Indebtedness is secured by certain cash deposits of Unifi do Brasil, Ltda with a Subsidiary Brazilian bank;
(14) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(15) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness to the extent the net proceeds thereof are promptly deposited to defease the Notes or satisfy the satisfaction and discharge of this Indenture as described in Article 8 and Section 11.01; and
(16) the incurrence by the Company or any Guarantor of additional Indebtedness, together with all other Indebtedness incurred pursuant to this clause (516) that is at the time outstanding, in an aggregate principal amount (or accreted value, as applicable) at any time outstanding not to exceed $15.0 million.
(c) The Company shall not permit any of its Unrestricted Subsidiaries to incur any Indebtedness other than Non-Recourse Debt. If any Non-Recourse Debt of an Unrestricted Subsidiary shall at any time cease to constitute Non-Recourse Debt or such Unrestricted Subsidiary shall be redesignated a Restricted Subsidiary, such event will be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary.
(d) For purposes of determining compliance with this Section 4.09:
(1) in the event that any Indebtedness meets the criteria of more than one of the categories described in clauses (1) through (16) of Section 4.09(b) or is entitled to be incurred pursuant to Section 4.09(a), the Company, in its sole discretion, will be permitted to classify (or later reclassify in whole or in part) such item of Indebtedness in any manner that complies with this covenant; provided that Indebtedness under the Credit Agreement outstanding on the Issue Date will initially be deemed to have been incurred on such date in reliance on the exception provided by Section 4.09(b)(1);
(2) 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, or less onerous, terms, the reclassification of preferred stock of the Company or any Guarantor as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock or preferred stock in the form of additional shares of the same class of Disqualified Stock or preferred stock, the accrual of dividends on Disqualified Stock or preferred stock and the accretion of the liquidation preference of Disqualified Stock or preferred stock will not be deemed to be an incurrence of Indebtedness for purposes of this covenant; provided, in each such case, that the amount thereof shall be included in the Fixed Charges of the Company;
(3) if obligations in respect of letters of credit are incurred pursuant to a Credit Agreement and are being treated as incurred pursuant to Section 4.09(b)(1) and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be included;
(4) Indebtedness permitted by this covenant need not be permitted solely by reference to one provision permitting such Indebtedness, but may be permitted in part by one such provision and in part by one or more other provisions of this covenant permitting such Indebtedness; and
(5) for the purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness denominated in a foreign currency, the dollar-equivalent principal amount of such Indebtedness incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the earlier of the date that such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-dominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-dominated 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 refinanced. Notwithstanding any other provision of this covenant, the maximum amount of Indebtedness that the Company or any of its Restricted Subsidiaries may incur pursuant to this covenant shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such refinancing Indebtedness is denominated that is in effect on the date of such refinancing.
(e) Upon any replacement or refinancing of any Credit Agreement or any portion thereof with a lender that does not become a party to the Intercreditor Agreement, the Trustee shall enter into an intercreditor agreement with such lender with terms that are not materially different to the Trustee or the Holders of Notes than those contained in the Intercreditor Agreement.
Appears in 1 contract
Sources: Indenture (Unifi Inc)
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries todirectly or indirectly, Incur any Subsidiary Indebtedness or any Secured Indebtedness ifIndebtedness; provided, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefromhowever, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, that the Company or any of its Restricted Subsidiaries that are Guarantors may Incur each and all Indebtedness, if the Company’s Consolidated Leverage Ratio at the time of the following:Incurrence of such additional Indebtedness, and after giving effect thereto, is less than 4.50 to 1.
(1b) Section 4.09(a) shall not prohibit the Incurrence of any of the following items of Indebtedness of (collectively, “Permitted Debt”):
(i) the Incurrence by the Company or any of the Subsidiary Guarantors outstanding its Restricted Subsidiaries of Indebtedness under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y)i) not to exceed $2.8 billion, the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, less the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary thereof to permanently repay any such refinancingIndebtedness pursuant to Section 4.10;
(2ii) the Incurrence of Existing Indebtedness;
(iii) the Incurrence by the Company and the Co-Issuer of Indebtedness owed to:represented by the Notes (including Additional Notes) pursuant to the Exchange Offers, and Guarantees of Notes (including Guarantees of Additional Notes) by the Guarantors;
(iv) the Incurrence by the Company or any Restricted Subsidiary thereof 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 (real or personal), plant or equipment used in the business of the Company or such Restricted Subsidiary (whether through the direct acquisition of such assets or the acquisition of Equity Interests of any Person owning such assets), in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred pursuant to this clause (iv), not to exceed the greater of (x) 3.0% of Total Assets and (y) $250.0 million;
(v) the Incurrence by the Company or any Restricted Subsidiary thereof 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 Section 4.09(a) or clauses (ii), (iii), (iv), (v), (xiv) or (xv) 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) The 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 Guarantor evidenced by an unsubordinated promissory note; or
thereof and (B) any sale or other Restricted Subsidiary; provided transfer of any such Indebtedness to a Person that if is not either the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other 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 (2)(BSection 4.09(b)(vi);
(3vii) the Notes Guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary thereof that was permitted to be Incurred by another provision of this Section 4.09;
(viii) the Incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations that are Incurred for the purpose of fixing, hedging or swapping interest rate, commodity price or foreign currency exchange rate risk (or to reverse or amend any such agreements previously made for such purposes), and not for speculative purposes;
(ix) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition), so long as the principal amount does not exceed the gross proceeds actually received by the Company or any Restricted Subsidiary thereof in connection with such disposition;
(x) 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 drawn against insufficient funds in the ordinary course of business, provided, however, that such Indebtedness is extinguished within five Business Days of its Incurrence;
(xi) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit in respect of workers’ compensation claims or self-insurance obligations or bid, performance, appeal or surety bonds (in each case other than for an obligation for borrowed money);
(xii) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business; provided 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;
(xiii) the Incurrence by the Company, the Co-Issuer or any Guarantor of Indebtedness to the extent that the net proceeds thereof are promptly deposited to defease or to satisfy and discharge the Notes;
(xiv) the Incurrence of Acquired Debt, provided that after giving effect to the Incurrence thereof, the Company could Incur at least $1.00 of Indebtedness under the Consolidated Leverage Ratio set forth in Section 4.09(a) hereof; and
(xv) the Incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred pursuant to this Section 4.09(b)(xv), not to exceed $250.0 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 Section 4.09(b)(i) through (xv) above, or is entitled to be Incurred pursuant to Section 4.09(a), the Company shall be permitted to classify such item of Indebtedness at the time of its Incurrence in any manner that complies with this Section 4.09; provided that any refinancing (a “Credit Facility Refinancing”) of amounts Incurred in reliance on the exception provided by Section 4.09(b)(i) shall be deemed to have been Incurred in reliance on such Section 4.09(b)(i). Indebtedness under the Credit Agreement outstanding on the Issue Date;
(4) Indebtedness outstanding as Date shall be deemed to have been Incurred on such date in reliance on the exception provided by Section 4.09(b)(i). Additionally, all or any portion of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds any item of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses Indebtedness under the Credit Agreement Incurred on the Issue Date and Credit Facility Refinancings, which at all times shall be deemed to have been Incurred under Section 4.09(b)(i) above) may later be reclassified as having been Incurred pursuant to Section 4.09(a) or under any one of the categories of Permitted Debt described in Section 4.09(b)(i) through (1)xv) so long as such Indebtedness is permitted to be Incurred pursuant to such provision at the time of reclassification.
(c) Notwithstanding any other provision of Section 4.09, (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate maximum amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Indebtedness that may be Incurred pursuant to Section 4.09 shall not be deemed to be exceeded with respect to any outstanding Indebtedness due solely to the result of fluctuations in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds exchange rates of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:currencies.
(Ad) such new IndebtednessNeither the Company nor the Co-Issuer shall Incur any Indebtedness that is contractually subordinate in right of payment to any other Indebtedness of the Company or the Co-Issuer, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness respectively, unless it is issued or remains outstanding, is expressly made contractually subordinate in right of payment to the Notes at least to the extent same extent. No Guarantor shall Incur any Indebtedness that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or contractually subordinate in right of payment to the Notes or any other Indebtedness of such Subsidiary Guarantor unless it is contractually subordinate in right of payment to such Guarantor’s Note GuaranteeGuarantee to the same extent. For purposes of the foregoing, no Indebtedness shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company or the Co-Issuer or any Guarantor, as applicable, be Refinanced solely by means reason of any Indebtedness Liens or Guarantees arising or created in respect thereof or by virtue of the fact that the holders of any Restricted Subsidiary 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. Notwithstanding anything in this Section 4.09, the principal amount of Indebtedness that is not a Subsidiary Guarantor pursuant may be incurred under clauses (iv) and (xv) of Section 4.09(b) shall be reduced by an amount equal to this clause the aggregate Indebtedness Incurred prior to the Issue Date under an equivalent provision in any other indenture governing the Company’s currently outstanding senior notes (5for the avoidance of doubt, without any duplication of Indebtedness Incurred under such equivalent provisions in more than one such indenture);, to the extent such Indebtedness remains (i) outstanding and (ii) Incurred under an equivalent provision in any other indenture governing the Company’s currently outstanding senior notes, in each case as of the Issue Date.
Appears in 1 contract
Sources: Indenture (Windstream Services, LLC)
Incurrence of Indebtedness. (a) The Company Parent will not, and will not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, enter into a guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness if(including Acquired Debt); provided, immediately after giving effect to the Incurrence of such however, that Parent may incur Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company (including Acquired Debt) and its Restricted Subsidiaries may incur Indebtedness (including Acquired Debt), if the Fixed Charge Coverage Ratio for Parent’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred would have been at least 1.1 to 1.0, determined on a consolidated pro forma basis would be greater than 65% (including a pro forma application of Adjusted Total Assets the net proceeds therefrom), as if the additional Indebtedness had been incurred at the beginning of any date of Incurrencesuch four-quarter period.
(b) The Company will not, and provisions of Section 6.03(a) will not permit prohibit the incurrence of any of its Restricted Subsidiaries tothe following items of Indebtedness (collectively, Incur “Permitted Debt”):
(1) Indebtedness incurred under the Loan Documents and any Subsidiary Permitted Refinancing Indebtedness that is incurred to renew, refund, refinance, replace, defease, extend or discharge all or a portion of any Secured Indebtedness if, immediately after giving effect incurred pursuant to this clause (1);
(2) the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company incurrence by Parent and its Restricted Subsidiaries on of the Existing Indebtedness and any Indebtedness that is incurred pursuant to or in lieu of a consolidated basis would be greater than 45% of Adjusted Total Assets commitment in existence as of any date of Incurrence.the Closing Date;
(c3) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and incurrence by the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company Parent or any of its Restricted Subsidiaries may Incur each of Indebtedness and all letters of the following:
credit (1and reimbursement obligations with respect thereto) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith an aggregate principal amount at any one time outstanding under this clause (3) (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding maximum potential liability of Parent and its Restricted Subsidiaries thereunder) not to exceed the sum greater of (1) (xi) $3,400.0 million plus 4,000,000,000 or (yii) 20% of the aggregate principal amount Consolidated Tangible Assets of any outstanding Incremental Term Loans (Parent and its Restricted Subsidiaries; provided that after giving pro forma effect to any such incurrences no Indebtedness or letters of Indebtedness credit incurred pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued is secured by a Lien on the Issue Dateany property or asset that constitutes Collateral;
(4) the incurrence by Parent or any of its Restricted Subsidiaries of Indebtedness outstanding as (including Capital Lease Obligations, mortgage financings, purchase money obligations or government bond financings) incurred to finance (or to reimburse Parent or any Restricted Subsidiary for) all or any part of the Issue Datepurchase price or cost of use, design, construction, installation or improvement of property, plant or equipment (including without limitation (and in each case, whether or not owned by Parent or any of its Subsidiaries) Aircraft Related Facilities or Aircraft Related Equipment) used in the business of Parent or any of its Restricted Subsidiaries; provided that no Indebtedness incurred pursuant to this clause (4) is secured by a Lien on any property or asset that constitutes Collateral;
(5) the incurrence by Parent or any of its Restricted Subsidiaries of (A) Permitted Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to extendrenew, refund, refinance, renew, replace, defeaseextend, defease or discharge or refund other outstanding any Indebtedness (other than intercompany Indebtedness) that was permitted by this Agreement to be incurred under Section 6.03(a) or clauses (12), (24), (5), (6), (108), (13), (1120), (23) and or (1324) of this Section 4.08(d)6.03(b) plus the aggregate amount and (B) Permitted Refinancing Indebtedness secured by Aircraft Related Equipment or other assets replacing, renewing, refunding, extending, refinancing, defeasing or discharging any other Indebtedness of fees, underwriting discounts, accrued and unpaid interest, premiums and Parent or any of its Restricted Subsidiaries that was secured by Aircraft Related Equipment or other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”)assets; including, in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds case of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
both clauses (A) such new Indebtednessand (B), the incurrence (including by way of assumption, merger or co-obligation) by one or more of Parent and its terms or by the terms Restricted Subsidiaries of Indebtedness of any agreement other Restricted Subsidiaries in connection with, or instrument pursuant in contemplation of, a spin-off of such other Restricted Subsidiary;
(6) the incurrence by Parent or any of its Restricted Subsidiaries of Indebtedness (including Acquired Debt) (A) as part of, or to which such new Indebtedness is issued or remains outstandingfinance, is expressly made subordinate in right the acquisition (including by way of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
merger) of any Permitted Business, (B) such new Indebtednessincurred in connection with, determined or as a result of, the merger (including the AMR/LCC Merger), consolidation or amalgamation of the date any Person (including Parent or any of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, its Restricted Subsidiaries) that in no event may Indebtedness of the Company owns a Permitted Business with or into Parent or a Restricted Subsidiary Guarantor of Parent, or into which Parent or a Restricted Subsidiary of Parent is merged, consolidated or amalgamated or (C) that ranks equally with is an outstanding obligation or subordinate commitment to enter into an obligation of a Person that owns a Permitted Business at the time that such Person is acquired by Parent or a Restricted Subsidiary of Parent and becomes a Restricted Subsidiary of Parent;
(7) the incurrence by Parent or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Parent and/or any of its Restricted Subsidiaries;
(8) the incurrence by Parent or any of its Restricted Subsidiaries of additional Indebtedness in right of payment to the Notes an aggregate principal amount (or such Subsidiary Guarantor’s Note Guaranteeaccreted value, as applicable), be Refinanced by means of including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, extend, defease or discharge any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor incurred pursuant to this clause (58), not to exceed $2,000,000,000 ($3,000,000,000 following the AMR/LCC Merger), at any time outstanding;
Appears in 1 contract
Sources: Credit and Guaranty Agreement (American Airlines Inc)
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries todirectly or indirectly, Incur any Subsidiary Indebtedness or any Secured Indebtedness ifIndebtedness; provided, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefromhowever, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, that the Company or any of its Restricted Subsidiaries that are Guarantors may Incur each and all Indebtedness, if the Company's Consolidated Leverage Ratio at the time of the following:Incurrence of such additional Indebtedness, and after giving effect thereto, is less than 4.50 to 1.
(1b) Section 4.09(a) shall not prohibit the Incurrence of any of the following items of Indebtedness of (collectively, “Permitted Debt”):
(i) the Incurrence by the Company or any of the Subsidiary Guarantors outstanding its Restricted Subsidiaries of Indebtedness under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y)i) not to exceed $4.0 billion, the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, less the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with all Net Proceeds of Asset Sales applied by the Company or any Restricted Subsidiary thereof to permanently repay any such refinancingIndebtedness pursuant to Section 4.10;
(2ii) the Incurrence of Existing Indebtedness;
(iii) the Incurrence by the Company of Indebtedness owed to:represented by the Notes to be issued on the Issue Date and the Guarantees of Notes (including Additional Notes) by the Guarantors;
(iv) the Incurrence by the Company or any Restricted Subsidiary thereof 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 (real or personal), plant or equipment used in the business of the Company or such Restricted Subsidiary (whether through the direct acquisition of such assets or the acquisition of Equity Interests of any Person owning such assets), in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred pursuant to this clause (iv), not to exceed the greater of (x) 3.0% of Total Assets and (y) $250.0 million;
(v) the Incurrence by the Company or any Restricted Subsidiary thereof 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 Section 4.09(a) or clauses (ii), (iii), (iv), (v), (xiv) or (xv) 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) The 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 Guarantor evidenced by an unsubordinated promissory note; or
thereof and (B) any sale or other Restricted Subsidiary; provided transfer of any such Indebtedness to a Person that if is not either the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other 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 (2)(BSection 4.09(b)(vi);
(3vii) the Notes Guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary thereof that was permitted to be Incurred by another provision of this Section 4.09;
(viii) the Incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations that are Incurred for the purpose of fixing, hedging or swapping interest rate, commodity price or foreign currency exchange rate risk (or to reverse or amend any such agreements previously made for such purposes), and not for speculative purposes;
(ix) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition), so long as the principal amount does not exceed the gross proceeds actually received by the Company or any Restricted Subsidiary thereof in connection with such disposition;
(x) 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 drawn against insufficient funds in the ordinary course of business, provided, however, that such Indebtedness is extinguished within five Business Days of its Incurrence;
(xi) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit in respect of workers' compensation claims or self-insurance obligations or bid, performance, appeal or surety bonds (in each case other than for an obligation for borrowed money);
(xii) the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business; provided 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;
(xiii) the Incurrence by the Company or any Guarantor of Indebtedness to the extent that the net proceeds thereof are promptly deposited to defease or to satisfy and discharge the Notes;
(xiv) the Incurrence of Acquired Debt, provided that after giving effect to the Incurrence thereof, the Company could Incur at least $1.00 of Indebtedness under the Consolidated Leverage Ratio set forth in Section 4.09(a) hereof; and
(xv) the Incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred pursuant to this Section 4.09(b)(xv), not to exceed $250.0 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 Section 4.09(b)(i) through (xv) above, or is entitled to be Incurred pursuant to Section 4.09(a), the Company shall be permitted to classify such item of Indebtedness at the time of its Incurrence in any manner that complies with this Section 4.09; provided that any refinancing (a “Credit Facility Refinancing”) of amounts Incurred in reliance on the exception provided by Section 4.09(b)(i) shall be deemed to have been Incurred in reliance on such Section 4.09(b)(i). Indebtedness under the Credit Agreement outstanding on the Issue Date;
(4) Indebtedness outstanding as Date shall be deemed to have been Incurred on such date in reliance on the exception provided by Section 4.09(b)(i). Additionally, all or any portion of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds any item of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses Indebtedness under the Credit Agreement Incurred on the Issue Date and Credit Facility Refinancings, which at all times shall be deemed to have been Incurred under Section 4.09(b)(i) above) may later be reclassified as having been Incurred pursuant to Section 4.09(a) or under any one of the categories of Permitted Debt described in Section 4.09(b)(i) through (1)xv) so long as such Indebtedness is permitted to be Incurred pursuant to such provision at the time of reclassification.
(c) Notwithstanding any other provision of Section 4.09, (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate maximum amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Indebtedness that may be Incurred pursuant to Section 4.09 shall not be deemed to be exceeded with respect to any outstanding Indebtedness due solely to the result of fluctuations in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds exchange rates of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:currencies.
(Ad) such new Indebtedness, by its terms or by The Company shall not Incur any Indebtedness that is contractually subordinate in right of payment to any other Indebtedness of the terms of any agreement or instrument pursuant to which such new Indebtedness Company unless it is issued or remains outstanding, is expressly made contractually subordinate in right of payment to the Notes at least to the extent same extent. No Guarantor shall Incur any Indebtedness that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or contractually subordinate in right of payment to any other Indebtedness of such Guarantor unless it is contractually subordinate in right of payment to such Guarantor's Note Guarantee to the Notes same extent. For purposes of the foregoing, no Indebtedness shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company or such Subsidiary any Guarantor’s Note Guarantee, as applicable, be Refinanced solely by means reason of any Indebtedness Liens or Guarantees arising or created in respect thereof or by virtue of the fact that the holders of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);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: Indenture (Windstream Corp)
Incurrence of Indebtedness. (a) The Company will Parent Guarantor shall not, and will shall not permit the Issuer or any of its Restricted Subsidiaries other Subsidiary to, Incur directly or indirectly, create, incur, assume or guaranty or otherwise become or remain directly or indirectly liable with respect to any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater other than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(i) (1) Indebtedness existing on the Closing Date (other than Indebtedness described in clauses (iv) and (v)), (2) Indebtedness incurred pursuant to the payment-in-kind of interest or additional amounts in respect thereof, to the extent the Parent Guarantor or any of its Subsidiaries is permitted to pay such payment-in-kind interest pursuant to the terms of such Indebtedness in effect as of the Closing Date (including PIK Superpriority Notes (as defined in the Intercreditor Agreement)), (3) Indebtedness pursuant to the Convertible Debentures outstanding on the Closing Date, plus any increase in Indebtedness pursuant to the transactions contemplated by the Transaction Support Agreement; and (4) Indebtedness to be incurred pursuant to the issuance of the 1L Consent Exchangeable Notes and the Second Out Exchangeable Notes (including the payment-in-kind of interest or additional amounts in respect thereof in compliance with the terms of the Second Out Exchangeable Notes in effect on the issue date thereof);
(ii) Indebtedness arising from customary indemnification or other similar obligations under the Transaction Documents and the other agreements entered into on the Closing Date in connection therewith (or permitted replacements or amendments thereto that do not expand the scope of the obligations thereunder);
(iii) Indebtedness of the Company Issuer or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal owed to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y)Parent Guarantor, the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) Issuer or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or (x) any Indebtedness owed to any Subsidiary Guarantor that is not an obligor, the Indebtedness is Obligor (A) shall be subordinated in right of payment to the NotesSecured Obligations as contemplated by Section 10.01 and (B) shall not exceed an aggregate outstanding principal amount of US$1.0 million, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event which results in y) upon any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (being owed to any Person other than to the Company Parent Guarantor, the Issuer or any other Restricted Subsidiary) , the Parent Guarantor, the Issuer or such other Subsidiary, as applicable, shall be deemed, in each case, deemed to constitute an Incurrence of such have incurred Indebtedness not permitted by this clause (2)(Biii);; and
(3) the Notes to be issued on the Issue Date;
(4iv) Indebtedness outstanding from time to time under the credit agreement dated May 27, 2024 entered into between Azul Investments, as of borrower, and the Issue Date;
(5) Indebtedness issued in exchange forParent Guarantor and Azul Linhas, or the net proceeds of which are used to extendas guarantors, refinanceand Citibank, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that IndebtednessN.A., the proceeds of which are used for engine maintenance, and any refinancing thereof incurred in compliance with clauses (3) and (4) within the definition of Required Debt Terms in the maximum aggregate principal amount at any time outstanding not to Refinance Subordinated Indebtednessexceed US$210.0 million;
(v) Specified Debt; provided that (x)(I) the Specified Debt described in clause (i) of the definition of Specified Debt shall be unsecured and (II) Indebtedness described in clauses (ii) and (iii) of the definition of Specified Debt shall only be secured by Liens described in clause (15) of the definition of Permitted Liens, will be permitted (y) in respect of any Specified Debt incurred on or prior to July 1, 2026, (I) the aggregate principal amount of all Specified Debt outstanding shall not to exceed the Specified Debt Cap, (II) no Default or Event of Default has occurred, is continuing or would result therefrom and (z) solely with respect to Indebtedness described in clause (ii) of the definition of Specified Debt that does not constitute Qualified Receivables Transaction or that is for working capital purposes and that is not secured by Credit and Debit Card Receivables, after July 1, 2026, on a pro forma basis, including after giving effect to such incurrence, the Total Leverage Ratio (calculated, for the purposes of this paragraph (v), excluding current and long-term leases (as determined in accordance with IFRS)) is equal to or less than 3.5 to 1.00;
(vi) Hedging Obligations; provided that such agreements (x) are entered into in the ordinary course of business solely to protect such Person against fluctuations in foreign currency exchange rates, interest rates, or commodity prices and (y) do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates, interest rates, or commodity prices or by reason of fees, indemnities and compensation payable thereunder;
(vii) Aircraft Financing;
(viii) Permitted Refinancing Indebtedness of Indebtedness incurred under clauses (i), (viii), (ix) or (xi) hereof;
(ix) on and after July 1, 2025, unsecured Indebtedness that (x) matures at least 91 days after the Maturity Date, (y) that does not have any scheduled amortization or mandatory prepayments of principal prior to the Maturity Date and (z) is not issued, borrowed or guaranteed by any Person who does not guarantee the New 2029 Second Out Notes; provided that on a pro forma basis, including after giving effect to such incurrence, the Total Leverage Ratio (calculated, for the purposes of this paragraph (ix), excluding current and long-term leases (as determined in accordance with IFRS)) is equal to or less than 3.5 to 1.00;
(x) Indebtedness incurred in connection with commercial letters of credit, bankers’ assurances or acceptances, surety bonds, insurance bonds and similar instruments entered into in the ordinary course of business (and reimbursement and backstop obligations in connection therewith) in an aggregate amount not to exceed US$800 million at any one time outstanding; provided that such Indebtedness under this clause (5x) may only if:be secured by Liens on cash and on assets other than the Shared Collateral;
(Axi) such new Indebtedness, by its terms or by the terms Indebtedness of any agreement other Person existing at the time such other Person is acquired by an Azul Group Entity, including by way of a merger, amalgamation or instrument consolidation or becomes a Subsidiary of the Parent Guarantor in connection with any acquisition or Investment permitted pursuant to which Section 4.11; provided that (x) on a pro forma basis, after giving effect to such new Indebtedness is issued transaction or remains outstandingseries of related transactions, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new IndebtednessTotal Leverage Ratio, determined calculated as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity last day of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that Calculation Period most recently ended for which financial statements are available is not a Subsidiary Guarantor greater than 4.40 to 1.00 and (y) such Indebtedness was not incurred in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation;
(xii) Indebtedness incurred by Receivables Subsidiaries pursuant to Qualified Receivables Transactions; provided that the outstanding amount of Indebtedness incurred pursuant to this clause (5xii) does not exceed an amount equal to US$2.0 billion less the aggregate principal amount of Indebtedness described in clause (ii) of the definition of Specified Debt that is secured by Liens on Credit and Debit Card Receivables;
(xiii) Lessor Notes in an aggregate principal amount not to exceed U.S.$370,490,204 (being the outstanding aggregate principal amount on the Closing Date);
(xiv) to the extent constituting Indebtedness (1) Pre-paid Points Purchases (other than any Blocked Pre-paid Points Purchase), so long as (A) the aggregate amount of Points purchased or other Indebtedness incurred in connection with such Pre-paid Points Purchases (other than Blocked Pre-paid Points Purchases) during the same fiscal year does not exceed 8% of the Azul Fidelidade Gross Billings for the four most recently completed Quarterly Reporting Periods (the “Permitted Pre-paid Points Basket Amount”), (B) the net proceeds of such Pre-paid Points Purchases (other than a Blocked Pre-paid Points Purchase) are paid directly to the Azul Fidelidade Receivables Deposit Account, (C) such sale is non-refundable and non-recourse to the IP Parties, and (D) the Indebtedness related thereto (if any) is unsecured or secured by assets of the Parent Guarantor or its Subsidiaries (other than the IP Parties) that do not constitute Shared Collateral; and (2) any Blocked Pre-paid Points Purchase; and
(xv) Indebtedness of any Permitted Business Combination Entity; provided that (x) such Indebtedness complies with the Required Cross Group Conditions and (y) Permitted Business Combination Entities may only incur Indebtedness in reliance on this clause (xv).
Appears in 1 contract
Sources: Indenture (Azul Sa)
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to (collectively, "incur") any Indebtedness if(including Acquired Debt); provided, immediately after giving effect to however, that, notwithstanding the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of foregoing the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
may incur Indebtedness (b) The Company will notincluding Acquired Debt), and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence incurrence of such Indebtedness and the receipt and application of the net proceeds therefromthereof on a pro forma basis, the Interest Coverage Indebtedness to Cash Flow Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 not have exceeded 8.0 to 1.0 (calculated on a Pro Forma Basis).1. The foregoing limitation will not apply to any of the following incurrences of Indebtedness:
(di) Notwithstanding clauses Indebtedness represented by the Notes and this Indenture;
(a), (bii) and (c) of this Section 4.08, the incurrence by the Company or any of its Restricted Subsidiaries may Incur each and all of the following:Acquired Subscriber Debt not to exceed $1,750 per Acquired Subscriber;
(1iii) the incurrence by the Company or any of its Restricted Subsidiaries of Deferred Payments and letters of credit with respect thereto;
(iv) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), its Restricted Subsidiaries in an aggregate principal amount not to exceed $1,050,000,000 at any one time outstanding outstanding, which Indebtedness may be secured to the extent permitted under Section 4.12 of this Indenture;
(v) Indebtedness between and among the Company and any of its Restricted Subsidiaries;
(vi) Acquired Debt of a Person incurred prior to the date upon which such Person was acquired by the Company or any of its Restricted Subsidiaries (excluding Indebtedness incurred by such entity other than in the ordinary course of its business in connection with, or in contemplation of, such entity being so acquired) in an amount not to exceed (A) $50 million in the aggregate for all such Persons other than those described in the immediately following clause (B); and (B) Acquired Debt owed to the Company or any of its Restricted Subsidiaries;
(vii) Existing Indebtedness;
(viii) the incurrence of Purchase Money Indebtedness by the Company or any of its Restricted Subsidiaries in an amount not to exceed the sum cost of construction, acquisition or improvement of assets used in any business permitted under Section 4.17 of this Indenture, as well as any launch costs and insurance premiums related to such assets;
(1ix) (x) $3,400.0 million plus (y) Hedging Obligations of the aggregate Company or any of its Restricted Subsidiaries covering Indebtedness of the Company or such Restricted Subsidiary to the extent the notional principal amount of any outstanding Incremental Term Loans (provided such Hedging Obligation does not exceed the principal amount of the Indebtedness to which such Hedging Obligation relates; provided, however, that after giving pro forma effect such Hedging Obligations are entered into to any such incurrences of Indebtedness pursuant to this clause (y), protect the Company and its Restricted Subsidiaries are from fluctuation in compliance interest rates on Indebtedness incurred in accordance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancingIndenture;
(2x) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if of the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary in respect of performance bonds or any subsequent transfer letters of such Indebtedness (other than to credit of the Company or any other Restricted SubsidiarySubsidiary or surety bonds provided by the Company or any Restricted Subsidiary incurred in the ordinary course of business and on ordinary business terms in connection with the businesses permitted under Section 4.17 of this Indenture;
(xi) shall be deemedIndebtedness of the Company or any of its Restricted Subsidiaries the proceeds of which are used solely to finance the 51 58 construction and development of a call center owned by the Company or any of its Restricted Subsidiaries in Christiansburg, in each case, Virginia or any refinancing thereof; provided that the aggregate of all Indebtedness incurred pursuant to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B)xi) shall in no event exceed $10 million at any one time outstanding;
(3xii) the Notes to be issued on incurrence by the Issue Date;
(4) Indebtedness outstanding as Company or any of the Issue Date;
(5) its Restricted Subsidiaries of Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge substitute or refund other outstanding in whole or in part Indebtedness (other than referred to in the first paragraph of this Section 4.09 or in clauses (1i), (2ii), (6iii), (10), (11vi),(vii) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”viii), in an amount not to exceed the amount so Refinancedabove ("Refinancing Indebtedness"); provided that Indebtednessprovided, the proceeds of which are used to Refinance Subordinated Indebtednesshowever, will be permitted under this clause (5) only if:
that: (A) the principal amount of such new IndebtednessRefinancing Indebtedness shall not exceed the principal amount and accrued interest of the Indebtedness so exchanged, by its terms extended, refinanced, renewed, replaced, substituted or by refunded and any premiums payable and reasonable fees, expenses, commissions and costs in connection therewith; (B) the terms Refinancing Indebtedness shall have a final maturity equal to or later than, and a Weighted Average Life to Maturity equal to or greater than, the final maturity and Weighted Average Life to Maturity, respectively, of any agreement the Indebtedness being exchanged, extended, refinanced, renewed, replaced or instrument pursuant to which such new refunded; and (C) the Refinancing Indebtedness is issued or remains outstanding, is expressly made subordinate shall be subordinated in right of payment to the Notes Notes, if at all, on terms at least as favorable to the extent that holders of Notes as those contained in the documentation governing the Indebtedness to be Refinanced is subordinated to the Notes; andbeing extended, refinanced, renewed, replaced or refunded (a "Permitted Refinancing");
(Bxiii) such new Indebtedness, determined as the guarantee by the Company or any of the date its Restricted Subsidiaries of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that was permitted to be incurred by another provision of this Section 4.09;
(xiv) Indebtedness under Capital Lease Obligations of the Company or any of its Restricted Subsidiaries with respect to no more than three direct broadcast satellites at any time;
(xv) Indebtedness represented by the EDBS Exchange Notes, the EDBS Exchange Guarantees and the EDBS Exchange Indenture. For purposes of determining compliance with this Section 4.09, if an item of Indebtedness meets the criteria of more than one of the categories described in clauses (i) through (xv) above or is not a Subsidiary Guarantor permitted to be incurred pursuant to the first paragraph of this clause Section 4.09 and also meets the criteria of one or more of the categories described in clauses (5);i) through (xv) above, the Company shall, in its sole discretion, classify such item of Indebtedness in any manner that complies with this Section 4.09 and may from time to time reclassify such item of Indebtedness in any manner in which such item could be incurred at the time of such reclassification.
Appears in 1 contract
Sources: Indenture (Echostar Broadband Corp)
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary of its Restricted Subsidiaries the Company to, Incur create, incur, assume or suffer to exist any Indebtedness, except:
(i) Indebtedness ifrepresented by the Senior Debt, immediately after giving effect less (without duplication) the amount of any Asset Sale Proceeds used to the Incurrence of such repay Indebtedness thereunder in accordance with Section 8.05;
(ii) Indebtedness not otherwise permitted hereunder secured by Liens permitted by Section 8.08(a)(iv), and the receipt extensions, renewals and application of the proceeds therefrom, refinancings thereof; provided that the aggregate principal amount of all such Indebtedness at any time outstanding shall not exceed $500,000;
(iii) Indebtedness of the Company and its to any Wholly-Owned Restricted Subsidiaries on Subsidiary that is a consolidated basis would be greater than 65% of Adjusted Total Assets as Guarantor or Indebtedness of any date of Incurrence.Wholly-Owned Restricted Subsidiary that is a Guarantor to the Company or another Wholly-Owned Restricted Subsidiary that is a Guarantor;
(biv) The Company will not, and will not permit any Indebtedness of its Restricted Subsidiaries to, Incur any the Chinese Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence Company not in excess of such Subsidiary Indebtedness or Secured Indebtedness and $500,000 at any time outstanding, less the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Investments made in the Chinese Subsidiary pursuant to Section 8.15(a)(ii);
(v) Hedging Obligations incurred by the Company or any Restricted Subsidiary for bona fide hedging purposes and not for speculation;
(vi) Indebtedness and Secured Indebtedness (including Contingent Obligations) described on Schedule 8.04 as of the Company Closing Time, and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets any extension, renewal, refunding or refinancing thereof so long as of any date of Incurrence.the principal amount thereof is not increased;
(cvii) The Company will notthe Trust Subordinated Debt in an aggregate outstanding principal amount not at any time exceeding $17.0 million, together with all accrued and will not permit any of its Restricted Subsidiaries tounpaid interest thereon;
(viii) the Indebtedness under this Agreement, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness Notes and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).Guarantees;
(dix) Notwithstanding clauses the Senarc Debt in an aggregate outstanding principal amount not at any time exceeding $460,340.96, together with accrued and unpaid interest thereon;
(a)x) Contingent Obligations arising (1) with respect to customary indemnification obligations in favor of sellers in connection with Acquisitions permitted under this Agreement and purchasers in connection with dispositions permitted under this Agreement, (b2) and (c) in the ordinary course of this Section 4.08, business by the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness guaranteeing obligations of the Company or any of its Restricted Subsidiaries that are Guarantors, (3) in favor of customers in the Subsidiary Guarantors outstanding under Credit Facilities ordinary course of business as a result of product warranties and the issuance or creation of letters of credit and bankers’ acceptances thereunder or (4) in connection therewith (with letters of credit unfunded pension fund and bankers acceptances being deemed to have a principal amount equal other employee benefit plan obligations, to the face amount thereofextent the same are not yet required to be funded;
(xi) Indebtedness incurred in connection with Acquisitions permitted pursuant to Section 8.15(xvi); provided that the requirements of clause (5) of such Section are satisfied; and
(xii) other Indebtedness, in addition to the Indebtedness listed above, in an aggregate outstanding principal amount not at any one time outstanding not to exceed the sum of (1) (x) exceeding $3,400.0 million plus (y) 500,000, less the aggregate outstanding principal amount of any outstanding Incremental Term Loans the Senarc Debt at such time (but in no event less than zero). (such clauses (i) through (xii), collectively referred to as "Permitted Indebtedness") provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of shall not incur any refinancing of any Permitted Indebtedness permitted under this clause (1) that is Subordinated Indebtedness that has a maturity or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of mandatory sinking fund payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);Notes.
Appears in 1 contract
Sources: Purchase Agreement (American Coin Merchandising Inc)
Incurrence of Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Total Net Debt to Adjusted Total Assets as of any date of IncurrenceRatio would exceed 0.65 to 1.00.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Senior Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Net Debt to Adjusted Total Assets as of any date of IncurrenceRatio would exceed 0.45 to 1.00.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis)1.0; provided that the amount of Indebtedness that may be Incurred by Restricted Subsidiaries that are not Subsidiary Guarantors shall not exceed the greater of $800.0 million and an amount equal to 8.0% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding .
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) the greater of $3,400.0 4,000.0 million and an amount equal to 40.0% of Adjusted Total Assets at any time outstanding, plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma Pro Forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing Refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancingRefinancing;
(2) Indebtedness owed to:
(A) The the Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date, the 2026 Notes to be issued on the Issue Date, the Note Guarantees and the 2026 Note Guarantees;
(4) Indebtedness outstanding as of the Issue DateDate (other than Indebtedness described in clause (1) above);
(5) the PropCo Notes and the Guarantees of the PropCo Notes;
(6) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness that was incurred under the provisions of paragraph (other than clauses (1a), (2b) or (c) of this covenant or clauses (3), (4), (5), (6), (9), (10), (11), (15), (18), (19) and or (1327) of this Section 4.08(d)) , in an amount not to exceed the amount so Refinanced plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance” or a “Refinancing”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (56) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes, if applicable; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the earlier of (i) the Stated Maturity of the Subordinated Indebtedness to be Refinanced, or (ii) the date that is 91 days after the Stated Maturity of the Notes, and the Average Life of such new Indebtedness is at least equal to the earlier of (1) the remaining Average Life of the Subordinated Indebtedness to be Refinanced, or (2) 91 days more than the Average Life of the Notes; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (56);
(7) obligations (contingent or otherwise) existing or arising under any Hedging Obligations or Swap Contracts (including Secured Hedge Agreements) entered into for the purpose of mitigating risks associated with fluctuations in interest rates (including both fixed to floating and floating to fixed contracts), foreign exchange rates or commodity price fluctuations in a non-speculative manner;
(8) Indebtedness under Secured Cash Management Agreements and in respect of netting services, the Overdraft Line and otherwise in connection with deposit accounts, commercial credit cards, stored value cards, purchasing cards and treasury management services, including any obligations pursuant to Cash Management Agreements, and other netting services, overdraft protections, automated clearing-house arrangements, employee credit card programs, controlled disbursement, ACH transactions, return items, interstate depository network service, Society for Worldwide Interbank Financial Telecommunication transfers, cash pooling and operational foreign exchange management, and in each case, similar arrangements and otherwise in connection with cash management, including cash management arrangements among the Company and its Subsidiaries;
(9) (A) Finance Leases, synthetic lease obligations, purchase money obligations or mortgage financings Incurred after the Issue Date and (B) Indebtedness secured by purchase money Liens, in an aggregate outstanding principal amount for clauses (A) and (B) on a combined basis not to exceed the greater of $200.0 million and an amount equal to 2.0% of Adjusted Total Assets at any time outstanding, provided, however, that, subject to clause (g), any Refinancing Incurred under clause (6) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (9) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (9);
(10) Indebtedness of the Company, to the extent the net proceeds therefrom are promptly:
(A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change of Control; or
(B) deposited to defease or discharge the Notes as described in Articles 8 and 11 hereof;
(11) Indebtedness incurred in connection with any Sale and Leaseback Transaction;
(12) customer deposits and advance payments received from customers in the ordinary course of business;
(13) any Guarantee issued by the Company pursuant to the matters described in any indemnity agreements entered into for the benefit of a title company that has been engaged by the Company or any of its Restricted Subsidiaries;
(14) Guarantees by the Company or any Restricted Subsidiary of any Indebtedness of the Company or any Restricted Subsidiary; provided that such Indebtedness was permitted to be Incurred pursuant to this covenant other than under this clause (14); provided further that any such Guarantees by the Company or any Subsidiary Guarantor of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor is subordinated in right of payment to the obligations of Company and the Subsidiary Guarantors under the Notes;
(15) Guarantees issued by the Company or any of its Restricted Subsidiaries of any Indebtedness of Joint Ventures or Unrestricted Subsidiaries in an amount not to exceed the greater of $200.0 million and 2.0% of Adjusted Total Assets at any time outstanding, if both before and after giving effect to the incurrence of each such Guarantee, no Default or Event of Default has occurred or is continuing, provided, however, that, subject to clause (g), any Refinancing Incurred under clause (6) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (15) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (15);
(16) Indebtedness of the Company or any of its Restricted Subsidiaries supported by a letter of credit issued under any Credit Facilities in an aggregate principal amount not to exceed the stated amount of such letter of credit (but which stated amount may include the amount of any anticipated premiums, expenses (including upfront fees and original issue discount) and any accretion in the principal amount thereof);
(17) contractual indemnity obligations entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of ownership or operation of their respective properties;
(18) Indebtedness (A) of a Person that becomes a Restricted Subsidiary after the Issue Date, that existed at the time such Person became a Restricted Subsidiary and was not created (but may have been amended) in anticipation or contemplation thereof, (B) Incurred to provide all or any portion of the funds utilized to acquire, or to consummate the transaction or series of related transactions in connection with or in contemplation of any acquisition of a Person that becomes a Restricted Subsidiary, (c) assumed in connection with an asset acquisition by the Company or a Restricted Subsidiary and (D) Incurred in connection with any Investment in a third party permitted under this Indenture, in each case under this clause (18), as long as immediately after giving effect thereto, either (i) the Interest Coverage Ratio on a Pro Forma Basis would be at least 2.0 to 1.0 or (ii) in the case of subclause (A) only, the Interest Coverage Ratio on a Pro Forma Basis would be greater than or equal to the actual Interest Coverage Ratio immediately prior to such acquisition, incurrence or assumption.
(19) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, together with any other Indebtedness incurred by such Restricted Subsidiaries pursuant to this covenant, in an amount not to exceed the greater of $800.0 million and an amount equal to 8.0% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding, provided, however, that, subject to clause (g), any Refinancing Incurred under clause (6) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (19) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (19);
Appears in 1 contract
Sources: Indenture (Vici Properties Inc.)
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, "incur") any Indebtedness if(including Acquired Debt); provided, however, that the Company and any Restricted Subsidiary may incur Indebtedness (including Acquired Debt), if the Fixed Charge Coverage Ratio for the Company's most recently ended four full fiscal quarters for which internal financial statements are available immediately after giving effect preceding the date on which such additional Indebtedness is incurred would have been at least 2 to the Incurrence of such Indebtedness and the receipt and 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 beginning of such four-quarter period.
(b) Notwithstanding the prohibitions of paragraph (a) of this Section 4.09, the Company may incur of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(i) the incurrence by the Company and any Restricted Subsidiary of the Indebtedness under Credit Facilities, including amounts outstanding at the Issue Date; provided that the aggregate principal amount of all outstanding Indebtedness under such Credit Facilities (including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (i)) permitted by this clause (i) does not exceed an amount equal to $375 million, less any repayments actually made thereunder with the Net Proceeds of Asset Sales in accordance with clause (b) of the second paragraph of Section 4.07;
(ii) the incurrence by the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.Existing Indebtedness (excluding amounts outstanding under Credit Facilities at the Issue Date);
(biii) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of incurrence by the Company and its Restricted Subsidiaries the Subsidiary Guarantors of Indebtedness represented by the Notes and the Note Guarantees issued on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.the Issue Date;
(civ) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, incurrence by the Company or any of its Restricted Subsidiaries may Incur of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each and case, incurred for the purpose of financing all or any part of the following:
(1) Indebtedness purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof)such Restricted Subsidiary, in an aggregate principal amount at (including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness incurred pursuant to this clause (yiv)) not to exceed $50 million at any time outstanding;
(v) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace, Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under the first paragraph of this covenant or clause (i), (ii), (iii), (iv) or (ix) of this paragraph;
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereofSubsidiaries; provided, the aggregate amount of feeshowever, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed tothat:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the obligor on such Indebtedness and such Indebtedness is owed to or held by a Restricted Subsidiary that is not a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in right full in cash of payment all Obligations with respect to the Notes, in the case of the Company, or the Note GuaranteeGuarantee of such Subsidiary Guarantor, in the case of a Subsidiary Guarantor Guarantor; and
(except to the extent prohibited by applicable Gaming Law); and provided further B) (i) any subsequent issuance or transfer of Equity Interests that any event which results in any such Restricted Subsidiary ceasing to be Indebtedness being held by a Restricted Subsidiary or any subsequent transfer of such Indebtedness (Person other than to the Company or a Wholly Owned Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Restricted Subsidiary) 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 (2)(Bvi);
(3vii) the Notes incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk with respect to be issued on the Issue Date;
(4) any floating rate Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be is permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness this Indenture to be Refinanced is subordinated to the Notes; andoutstanding;
(Bviii) such new Indebtedness, determined as the guarantee by the Company or any of the date its Restricted Subsidiaries of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Restricted Subsidiary Guarantor of the Company that ranks equally with was permitted to be incurred by another provision of this covenant;
(ix) the incurrence by the Company or subordinate any of its Restricted Subsidiaries of additional Indebtedness in right of payment to the Notes an aggregate principal amount (or such Subsidiary Guarantor’s Note Guaranteeaccrued value, as applicable) at any time outstanding, be Refinanced by means of including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor incurred pursuant to this clause (5ix), not to exceed $50 million;
(x) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt; provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Company that was not permitted by this clause (x);
(xi) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of judgment, appeal, surety, performance and other like bonds, bankers acceptances and letters of credit provided by the Company and its Subsidiaries in the ordinary course of business (including any Indebtedness incurred to refinance, retire, renew, defease, refund or otherwise replace any Indebtedness referred to in this clause (xi)); and
(xii) Indebtedness incurred by the Company or any of its Subsidiaries arising from agreements or their respective bylaws providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries to any Person acquiring all or a portion of such business or assets of a Subsidiary of the Company.
(c) For purposes of determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in paragraphs (b)(i) through (b)(xii) above, or is entitled to be incurred pursuant to the first paragraph of this covenant, the Company shall be permitted to classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.09.
Appears in 1 contract
Sources: Indenture (Mail Well Inc)
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary of its Restricted Subsidiaries the Company to, Incur create, incur, assume or suffer to exist any Indebtedness, except:
(i) Indebtedness ifrepresented by the Senior Debt, immediately after giving effect less (without duplication) the amount of any Net Cash Proceeds of any Asset Sale used to the Incurrence of such repay Indebtedness thereunder in accordance with Section 8.05;
(ii) Indebtedness not otherwise permitted hereunder secured by Liens permitted by Section 8.08(a)(iv), and the receipt extensions, renewals and application of the proceeds therefrom, refinancings thereof; provided that the aggregate principal amount of all such Indebtedness at any time outstanding shall not exceed $500,000;
(iii) Indebtedness of the Company and its to any Wholly-Owned Restricted Subsidiaries on Subsidiary that is a consolidated basis would be greater than 65% of Adjusted Total Assets as Guarantor or Indebtedness of any date of Incurrence.Wholly-Owned Restricted Subsidiary that is a Guarantor to the Company or another Wholly-Owned Restricted Subsidiary that is a Guarantor;
(biv) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Acquisition Sub to Fundamental Dynamics Industries, Inc. in an aggregate outstanding principal amount not at any time in excess of $75,000;
(v) Hedging Obligations incurred by the Company or any Restricted Subsidiary for bona fide hedging purposes and its Restricted Subsidiaries not for speculation;
(vi) Indebtedness (including Contingent Obligations) described on a consolidated basis would be greater than 45% of Adjusted Total Assets Schedule 8.04 as of the Closing Time, and any date of Incurrence.extension, renewal, refunding or refinancing thereof so long as the principal amount thereof is not increased;
(cvii) The Company will notthe Trust Subordinated Debt in an aggregate outstanding principal amount not at any time exceeding $17.0 million, together with all accrued and will not permit any of its Restricted Subsidiaries tounpaid interest thereon;
(viii) the Indebtedness under this Agreement, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness Notes and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).Guarantees;
(dix) Notwithstanding clauses the Senarc Debt in an aggregate outstanding principal amount not at any time exceeding $223,490, together with accrued and unpaid interest thereon;
(a)x) Contingent Obligations arising (1) with respect to customary indemnification obligations in favor of sellers in connection with Acquisitions permitted under this Agreement and purchasers in connection with dispositions permitted under this Agreement, (b2) and (c) in the ordinary course of this Section 4.08, business by the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness guaranteeing obligations of the Company or any of its Restricted Subsidiaries that are Guarantors, (3) in favor of customers in the Subsidiary Guarantors outstanding under Credit Facilities ordinary course of business as a result of product warranties and the issuance or creation of letters of credit and bankers’ acceptances thereunder or (4) in connection therewith with unfunded pension fund and other employee benefit plan obligations, to the extent the same are not yet required to be funded;
(xi) Indebtedness incurred in connection with letters Acquisitions permitted pursuant to Section 8.15(xvi); provided that the requirements of credit and bankers acceptances being deemed to have a clause (6) of such Section are satisfied;
(xii) the Kiddie World Debt in an aggregate outstanding principal amount equal not at any time exceeding $953,051, together with all accrued and unpaid interest thereon; and
(xiii) other Indebtedness, in addition to the face amount thereof)Indebtedness listed above, in an aggregate outstanding principal amount not at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) 500,000, less the aggregate outstanding principal amount of any outstanding Incremental Term Loans the Senarc Debt at such time (but in no event less than zero) (such clauses (i) through (xiii), collectively, referred to as "Permitted Indebtedness"), provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of shall not incur any refinancing of any Permitted Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of after the date of Incurrence of such new Indebtedness, does not mature hereof that is Subordinated Indebtedness that has a maturity or mandatory sinking fund payment prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);Notes.
Appears in 1 contract
Sources: Purchase Agreement (American Coin Merchandising Inc)
Incurrence of Indebtedness. (a) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur directly or indirectly incur, create or permit to subsist (collectively, “incur”) any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of IncurrenceIndebtedness.
(b) The Company will notSection 4.10(a) shall not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):
(1) any Indebtedness outstanding on the Issue Date arising under (i) the Notes Documents or (ii) the New Term Loan Facility;
(2) the Existing Indebtedness, provided that it is refinanced (and will not permit any security and guarantee is released) substantially concurrently with the issuance of the Notes;
(3) any Indebtedness between or among the Issuer and any of its Restricted Subsidiaries to(including, Incur without limitation, any intra-group loans to the Vessel Guarantors from the Issuer), provided that any Indebtedness having the Issuer or a Guarantor as debtor and a Subsidiary Indebtedness that is not a Guarantor or the Issuer as creditor shall, pursuant to and to the extent provided by the Intercreditor Agreement or any Secured Indebtedness ifAdditional Intercreditor Agreement, immediately after giving effect be subordinated to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness Notes and the receipt Guarantees (as applicable) and application may only be serviced so long as no Event of Default has occurred and is continuing;
(4) obligations under any derivative transactions related to the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company Issuer and its Restricted Subsidiaries Subsidiaries’ hedging made on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.non-speculative basis;
(c5) The Company will notthe incurrence of Indebtedness, and will not permit or any of its Restricted Subsidiaries torecourse liability owing to any financial institution, Incur any Indebtedness if, after giving effect to by the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company Issuer or any of its Restricted Subsidiaries may Incur each in respect of completion, bid, appeal, surety or performance bonds, advance payment guarantees and all of the following:
(1) Indebtedness of the Company other guarantees or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder issued in the ordinary course of business of the Issuer or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof)relevant Subsidiary, in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences incurrence of Indebtedness by a Vessel Guarantor pursuant to this clause (y), 5) shall only be in respect of the Company and its Restricted Subsidiaries are in compliance with paragraphs relevant Vessel of such Vessel Guarantor;
(a6) and any Attributable Indebtedness and/or secured Indebtedness incurred by a Subsidiary (bother than a Guarantor) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
Subsidiary’s acquisition of, or investment in, a Vessel (2or entity owning such Vessel or participation in a joint venture owning a Vessel) Indebtedness owed tofrom an entity not being the Issuer or a Subsidiary (such Indebtedness, a “New Vessel Financing”), and which may be guaranteed by the Issuer, provided that:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, ratio of the Indebtedness is subordinated in right principal amount of payment the New Vessel Financing relative to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer Fair Market Value of such Indebtedness (other than to acquisition or investment at the Company or any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence time of obtaining such Indebtedness New Vessel Financing does not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes70%; and
(B) such new IndebtednessIndebtedness may only be secured by a mortgage over the acquired Vessel, determined as a pledge or charge of the date shares of Incurrence the Subsidiary owning such Vessel and other security over assets, rights, bank accounts and contracts of the Subsidiary owning such new Indebtedness, does not mature prior Vessel comparable in nature to the Stated Maturity Collateral (but, for the avoidance of doubt, no such Indebtedness may be secured on any Collateral).
(7) any Indebtedness under any pension and Tax liabilities incurred in the Subordinated ordinary course of business or the incurrence by the Issuer or any of its Subsidiaries of Indebtedness to be Refinancedin respect of in respect of workers’ compensation claims, unemployment insurance, health, disability and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided furtherother employee benefits or property, that in no event may casualty or liability insurance, self-insurance obligations or bankers’ acceptances;
(8) senior unsecured Indebtedness of the Company Issuer or any of its Subsidiaries (other than a Guarantor) maturing after the final maturity of the Notes and not otherwise permitted by this Section 4.10 which in the aggregate shall not exceed $100.0 million for the Issuer and its Subsidiaries as a whole at any time;
(9) senior unsecured Indebtedness of the Issuer or any of its Subsidiaries (other than a Guarantor) not otherwise permitted by this Section 4.10 which in aggregate shall not exceed $5.0 million for the Issuer and its Subsidiaries as a whole at any time;
(10) Permitted Refinancing Indebtedness in respect of Indebtedness (other than intercompany Indebtedness) of the Issuer or any of its Subsidiaries that was permitted by this Indenture to be incurred under clauses (1) or (6) of this Section 4.10(b);
(A) the guarantee (whether or not secured) by the Issuer or any Subsidiary (other than a Guarantor) of Indebtedness of the Issuer or any Subsidiary that was permitted to be incurred by another provision of this Section 4.10; provided that if the Indebtedness being guaranteed is contractually subordinated to the notes or a Guarantee, then the guarantee shall be contractually subordinated to the same extent as the Indebtedness guaranteed and (B) guarantees by the Issuer or any Guarantor in respect of Permitted Refinancing Indebtedness incurred under clause (10) of this Section 4.10(b) in respect of any Notes or the New Term Loan Facility;
(12) the incurrence by the Issuer or any of its Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within 30 Business Days;
(13) the incurrence by the Issuer or any of its Subsidiaries of Indebtedness consisting of guarantees, earn-outs, indemnities, contribution, obligations in respect of purchase price adjustments or, in each case, similar obligations, in connection with the disposition or acquisition of assets, including, without limitation, shares of Capital Stock;
(14) the incurrence by the Issuer or any of its Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit so long each such obligation is satisfied within 30 days of the incurrence thereof;
(15) the incurrence by the Issuer or any of its Subsidiaries of Indebtedness in the form of customer deposits and advance payments received in the ordinary course of a Permitted Business from customers for services purchased in the ordinary course of a Permitted Business;
(16) Indebtedness of the Issuer or any of its Subsidiaries arising from customary cash management services or in connection with any automated clearinghouse transfer of funds in the ordinary course of a Permitted Business; and
(17) Indebtedness of a Person acquired by the Issuer or a Subsidiary Guarantor that ranks equally or merged, consolidated, amalgamated or liquidated with or subordinate in right of payment to into a Subsidiary or the Notes Issuer, provided that such Indebtedness was incurred or such Subsidiary Guarantor’s Note Guaranteeissued, as applicable, prior to such transaction and not in connection with or in contemplation of such transaction; provided further that either (a) at the time of entry into definitive documentation with respect to such transaction, the ratio of the principal amount of the Total Debt of such Person to the Fair Market Value of such Person does not exceed 80% or (b) the ratio of the principal amount of the Total Debt relative to the Adjusted EBITDA of the Issuer or the Person formed by or surviving such transaction on a pro forma basis will be Refinanced by means no greater than the ratio of the Issuer was prior to such transaction..
(c) For purposes of determining compliance with this Section 4.10, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described above, the Issuer, in its sole discretion, may divide and/or classify such item of Indebtedness (or any Indebtedness portion thereof) on the date of its incurrence, or later re-divide and/or reclassify, all or a portion of such item of Indebtedness, in any Restricted Subsidiary manner that is not a Subsidiary Guarantor pursuant to complies with this clause (5);Section 4.10.
Appears in 1 contract
Sources: Indenture (Global Ship Lease, Inc.)
Incurrence of Indebtedness. (a1) The Company will Operating Partnership shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, Incur any Indebtedness (including Acquired Indebtedness) if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company Operating Partnership and its the Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b2) The Company will Operating Partnership shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, Incur any Subsidiary Indebtedness or any Secured Indebtedness (in each case, including Acquired Indebtedness) if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company Operating Partnership and its the Restricted Subsidiaries on a consolidated basis would be greater than 4540% of Adjusted Total Assets as of any date of Incurrence.
(c3) The Company will Operating Partnership shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, Incur any Indebtedness (including Acquired Indebtedness) if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company Operating Partnership and its the Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis)1.0.
(d4) Notwithstanding clauses (a1), (b2) and (c3) of this Section 4.084.09, the Company or any of its Operating Partnership and the Restricted Subsidiaries may Incur each and all of the following:following (“Permitted Debt”):
(1i) Indebtedness of the Company Operating Partnership or any of the Subsidiary Guarantors outstanding under the Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum greater of (1) (xi) $3,400.0 million plus 2.5 billion and (yii) the aggregate principal an amount equal to 40.0% of Adjusted Total Assets as of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences date of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancingIncurrence;
(2B) Indebtedness owed to:
(Ai) The Company the Operating Partnership or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(Bii) any other Restricted Subsidiary; provided that if the Company Operating Partnership, the Co-Issuer or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the CompanyOperating Partnership or the Co-Issuer, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law)Guarantor; and provided further that any event 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 Operating Partnership or any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(BB)(ii);
(3C) Indebtedness represented by the Notes to be and the Note Guarantees issued on the Issue Date;
(4D) Indebtedness outstanding as of the Issue DateDate (other than Indebtedness outstanding on the Issue Date under the Existing Credit Facility, which initially shall be deemed to have been Incurred on the Issue Date in reliance on the exception provided by clause (4)(A) of this Section 4.09);
(5E) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”) (other than Indebtedness Incurred under clauses (A), (B), (F), (H), (J), (K), (L) and (M) of this Section 4.09(4)) and any refinancings thereof, in an amount not to exceed the amount so RefinancedRefinanced (plus premiums, accrued interest, fees and expenses); provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will shall be permitted under this clause (5E) only if:
(Ai) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes or the applicable Note Guarantee, as the case may be, at least to the extent that the Indebtedness to be Refinanced is subordinated to the NotesNotes or such Note Guarantee, as the case may be; and
(Bii) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the earlier of the Stated Maturity of the Subordinated Indebtedness to be RefinancedRefinanced or the Stated Maturity of the Notes, and the Average Life of such new Indebtedness is at least equal to the lesser of the remaining Average Life of the Subordinated Indebtedness to be RefinancedRefinanced or the remaining Average Life of the Notes; and provided further, further that in no event may Indebtedness of the Company any Issuer or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced pursuant to this clause (E) by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5)Guarantor;
Appears in 1 contract
Sources: Indenture (QualityTech, LP)
Incurrence of Indebtedness. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, (i) Incur any Indebtedness if(including Acquired Debt) or (ii) issue any Disqualified Stock; provided, immediately after giving effect to however, that the Incurrence of such Indebtedness Issuer and the receipt and Restricted Subsidiaries may Incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, if the Consolidated Fixed Charge Coverage Ratio for the Issuer’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is Incurred or such Disqualified Stock is issued, as the case may be, would have been at least 2.0:1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the aggregate principal amount additional Indebtedness had been Incurred or such Disqualified Stock had been issued, as the case may be at the beginning of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrencesuch four-quarter period.
(b) The Company will notNotwithstanding the foregoing, and Section 7.10(a) will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to prohibit the Incurrence of such Subsidiary any of the following (collectively, “Permitted Debt”):
(i) the Incurrence by the Issuer and any Guarantor of Indebtedness under this Indenture or Secured Indebtedness and the receipt and application letters of the proceeds therefrom, the credit under Credit Facilities in an aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face maximum potential liability of the Issuer and any Guarantor thereunder) that, at the time of and after giving effect to such Incurrence and all other Incurrences made under this paragraph (i) since the Issue Date and which remain outstanding, does not exceed the greater of (A) US$150 million or (B) three times the Issuer’s Consolidated EBITDA for the most recently ended four full fiscal quarters for which internal financial statements are available (determined on a pro forma basis after giving effect to a pro forma application of the net proceeds of such Incurrence and to such other pro forma adjustments as are consistent with those set forth in the definition of “Consolidated Fixed Charge Coverage Ratio”), and in each case such amounts are to be reduced by the aggregate principal amount thereofof Notes and any Additional Notes outstanding on the date of such Incurrence (Indebtedness Incurred pursuant to this paragraph (i) being referred to as “Permitted Pari Indebtedness”);
(ii) the Incurrence by the Issuer or any Restricted Subsidiary of Indebtedness represented by Lease Obligations in an aggregate principal amount that, at the time of and after giving effect to such Incurrence and all other Incurrences made under this paragraph (i) since the Issue Date and which remain outstanding (including all Permitted Refinancing Indebtedness Incurred to refund, refinance, replace, defease or discharge any Lease Obligations Incurred pursuant to this paragraph (i)), does not exceed the greater of (A) $75 million and (B) 20% of the Issuer’s Consolidated Net Tangible Assets (determined as of the date of such Incurrence and including any right of use assets acquired in connection with such Lease Obligations);
(iii) the Incurrence by the Issuer or any Restricted Subsidiary of Lease Obligations in the ordinary course of business in respect of (A) retail locations for dispensaries, (B) cultivation and/or manufacturing facilities, or (C) equipment that will be used at dispensaries and/or cultivation and manufacturing facilities;
(iv) the Incurrence by the Issuer or any Restricted Subsidiary of Indebtedness represented by purchase money obligations incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation, development or improvement of property, plant or equipment used in the business of the Issuer or any of its Restricted Subsidiaries, in an aggregate principal amount that, at any one the time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that and after giving pro forma effect to such Incurrence and all other Incurrences made under this clause (iv) since the Issue Date and which remain outstanding (including all Permitted Refinancing Indebtedness Incurred to refund, refinance, replace, defease or discharge any such incurrences of Indebtedness Incurred pursuant to this clause (yiv)), does not exceed the Company and its Restricted Subsidiaries are in compliance with paragraphs greater of (a) $40 million and (b) above) plus 10% of the Issuer’s Consolidated Net Tangible Assets (2) in determined as of the case date of such Incurrence and including any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection assets acquired with such refinancingIndebtedness);
(2v) the guarantee by the Issuer or any Restricted Subsidiary of non-recourse debt of an Unrestricted Subsidiary or joint venture in which the Issuer or a Restricted Subsidiary has an ownership interest; provided that recourse on such guarantee is limited to Liens on and pledges of the Equity Interests of such Unrestricted Subsidiary or joint venture;
(vi) the Incurrence of Existing Indebtedness;
(vii) the Incurrence by the Issuer and the Guarantors of Indebtedness owed torepresented by the Notes and the Subsidiary Guarantees, in each case, issued on the Issue Date, and any subsequent Incurrence by a Guarantor of Indebtedness represented by a Subsidiary Guarantee;
(viii) the Incurrence by the Issuer or any Restricted Subsidiary of the Issuer of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease or discharge Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be Incurred under Section 7.10(a) or clauses (ii), (iv), (vi) and (xv) of this Section 7.10(b);
(ix) the Incurrence by the Issuer or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Issuer or any of its Restricted Subsidiaries; provided, however, that:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company Issuer or any Subsidiary Guarantor is an obligorthe obligor on such Indebtedness, such Indebtedness must be unsecured and is expressly subordinated to the Indebtedness is subordinated prior payment in right full in cash of payment all Obligations with respect to the Notes, in the case of the CompanyIssuer, or the Note any Subsidiary Guarantee, in the case of a Subsidiary Guarantor Guarantor;
(except B) such Indebtedness owed to the extent prohibited by applicable Gaming Law)Issuer or any Guarantor must be unsubordinated obligations, unless the obligor under such Indebtedness is the Issuer or a Guarantor; and provided further and
(C) (1) any subsequent issuance or transfer of Equity Interests that any event which results in any such Restricted Subsidiary ceasing to be Indebtedness being held by a Person other than the Issuer or a Restricted Subsidiary thereof and (2) any sale or any subsequent other transfer of any such Indebtedness (other than to a Person that is not either the Company Issuer or any other a Restricted Subsidiary) shall Subsidiary thereof, will be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Issuer or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (2)(BSection 7.10(b)(ix);
(3x) the Notes issuance by any Restricted Subsidiary to be issued on the Issue Date;
(4) Indebtedness outstanding as Issuer or to any of the Issue Date;
(5) Indebtedness issued in exchange forits Restricted Subsidiary of any preferred stock or Disqualified Stock; provided, or the net proceeds of which are used to extendhowever, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) any subsequent issuance or transfer of Equity Interests that results in any such new Indebtedness, preferred stock or Disqualified Stock being held by its terms a Person other than the Issuer or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);thereof and
Appears in 1 contract
Sources: Trust Indenture
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, Incur any Other Indebtedness if, immediately after giving effect to the Incurrence of such Other Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount ratio of all outstanding Other Indebtedness to Consolidated EBITDA would be greater than 3:1.
(i) Senior Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of outstanding at any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), time in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal 2.5 million, less any amount of any outstanding Incremental Term Loans Indebtedness permanently repaid as provided under Section 5.10; (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2ii) Indebtedness owed to:
(A) The to the Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
note or (B) to any other of its Restricted SubsidiarySubsidiaries; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further PROVIDED that any event 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 any other another Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(Bii);
; (3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5iii) Indebtedness issued in exchange for, or the net proceeds of which are used to extendrefinance or refund, refinancethen outstanding Indebtedness, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), refinancings thereof in an amount not to exceed the amount so Refinancedrefinanced or refunded (plus premiums, accrued interest, fees and expenses); provided PROVIDED that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinancedrefinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinancedrefinanced or refunded; and provided further, PROVIDED FURTHER that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor of the Company pursuant to this clause (5iii);; (iv) Indebtedness (A) in respect of performance, surety or appeal bonds provided in the ordinary course of business, and (B) under Currency Agreements and Interest Rate Agreements; PROVIDED that such agreements do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder; (v) Indebtedness of the Company not to exceed, at any one time outstanding, 1.5 times the Net Cash Proceeds received by the Company after the Closing Date from the issuance and sale of its Capital Stock (other than Redeemable Stock and Preferred Stock that provides for the payment of dividends in cash); (vi) Indebtedness up to $10 million outstanding at any time to the extent such Indebtedness is secured by Liens permitted under clause (vi) of the second paragraph of Section 5.12 and (vii) Indebtedness of the Company or a Restricted Subsidiary, to the extent the proceeds thereof are immediately used to purchase Securities tendered in an Offer to Purchase made as a result of a Change of Control. For purposes of determining compliance with this Section 5.09, in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described in the above clauses, the Company, in its sole discretion, shall classify such item of Indebtedness and only be required to include the amount and type of such Indebtedness in one of such clauses.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 6560% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 4540% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis)1.0.
(d) Notwithstanding clauses paragraphs (a), (b) and (c) of this Section 4.08above, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:following (“Permitted Debt”):
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under the Credit Facilities and the issuance or creation of letters of credit and bankers’ ' acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing325.0 million;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);
Appears in 1 contract
Sources: Indenture (Cincinnati Bell Inc)
Incurrence of Indebtedness. (a) The Company Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, incur, directly or indirectly, any Indebtedness; provided that the Issuer or any Restricted Subsidiary may incur Indebtedness if, immediately after giving effect to such incurrence, the Consolidated Coverage Ratio is at least 2.0 to 1.0 determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, and the application of proceeds therefrom, had occurred at the beginning of the four-quarter period determined pursuant to the definition of “Consolidated Coverage Ratio” (this proviso, the “Coverage Ratio Exception”); provided that the maximum principal amount of Indebtedness outstanding at any time that may be incurred pursuant to this Section 4.09(a) by Restricted Subsidiaries that are not Guarantors shall not exceed $50.0 million.
(b) Section 4.09(a) will not prohibit incurrence of the following Indebtedness (collectively, “Permitted Indebtedness”):
(1) the Notes issued on the Issue Date and any related Guarantees, and any Notes and any Guarantees issued in exchange for such Notes and Guarantees in an exchange offer conducted pursuant to the Registration Rights Agreement;
(2) Indebtedness of the Issuer or any Restricted Subsidiary to the extent outstanding on the Issue Date (other than Indebtedness under the Credit Facilities);
(3) Indebtedness of the Issuer or any Restricted Subsidiary under Credit Facilities in an aggregate amount at any time outstanding pursuant to this clause (3) (including amounts outstanding on the Issue Date) not to exceed the sum of (x) $275.0 million and (y) an amount equal to the sum of (i) 65% of the net book value of the Inventory of the Issuer and the Restricted Subsidiaries and (ii) 85% of the net book value of the accounts receivable of the Issuer and the Restricted Subsidiaries, in each case determined on a consolidated basis in accordance with GAAP, in each case, less the aggregate principal amount of all principal repayments with the proceeds from Asset Sales utilized in accordance with Section 4.10(a)(i) that permanently reduce the commitments thereunder;
(4) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to the Coverage Ratio Exception, Section 4.09(b)(1), Section 4.09(b)(2) (other than any Indebtedness owed to the Issuer or any of its Subsidiaries), this Section 4.09(b)(4), or Section 4.09(b)(16);
(5) Indebtedness owed by the Issuer or any Restricted Subsidiary to the Issuer or a Restricted Subsidiary; provided that
(A) any such Indebtedness owed by the Issuer shall be subordinated by its terms to the prior payment in full in cash of all Obligations with respect to the Notes, and any such Indebtedness owed by any Guarantor (other than to the Issuer or any other Guarantor) shall be subordinated by its terms to the prior payment in full in cash of all Obligations with respect to the Guarantee of such Guarantor; and
(B) if such Indebtedness is held by a Person other than the Issuer or a Restricted Subsidiary, the Issuer or such Restricted Subsidiary shall be deemed to have incurred Indebtedness not permitted by this Section 4.09(b)(5);
(6) (x) the guarantee by the Issuer or any Guarantor of Indebtedness of the Issuer or a Guarantor and (y) the guarantee by any Restricted Subsidiary that is not a Guarantor of Indebtedness of any other Restricted Subsidiary that is not a Guarantor; provided that, in each case, the Indebtedness being guaranteed is incurred pursuant to the Coverage Ratio Exception or is Permitted Indebtedness;
(7) Hedging Obligations;
(8) Purchase Money Indebtedness and Capital Lease Obligations of the Issuer or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any assets (including capital expenditures of the Issuer or any Restricted Subsidiary), and Refinancings thereof, in an aggregate amount at any time outstanding pursuant to this Section 4.09(b)(8) not to exceed the greater of (x) $25.0 million and (y) 5.6% of Consolidated Net Tangible Assets;
(9) Indebtedness of any Foreign Subsidiary in an aggregate amount not to exceed at any time outstanding pursuant to this Section 4.09(b)(9) not to exceed the greater of (x) $50.0 million and (y) 16% of Consolidated Net Tangible Assets of Foreign Subsidiaries;
(10) Indebtedness of the Issuer or any of its Restricted Subsidiaries represented by worker’s compensation claims and other statutory or regulatory obligations, self-insurance obligations, tender, bid, performance, government contract, surety or appeal bonds, standby letters of credit and warranty and contractual service obligations of like nature, trade letters of credit or documentary letters of credit, in each case to the extent incurred in the ordinary course of business of the Issuer or such Restricted Subsidiary;
(11) customary indemnification, adjustment of purchase price or similar obligations, in each case, incurred in connection with the acquisition or disposition of any assets of the Issuer or any Restricted Subsidiary (other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such assets for the purpose of financing such acquisition);
(12) obligations in respect of performance bonds and completion, guarantee, surety and similar bonds in the ordinary course of business;
(13) Indebtedness in respect of Treasury Services Agreements (including Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds);
(14) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(15) Indebtedness consisting of take-or-pay obligations contained in supply agreements relating to products, services or commodities of a type that the Issuer or any of its Subsidiaries uses or sells in the ordinary course of business;
(16) Acquired Indebtedness; provided that after giving effect to such acquisition or merger, either
(A) the Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or
(B) the Consolidated Coverage Ratio of the Issuer and the Restricted Subsidiaries is equal to or greater than immediately prior to such acquisition or merger;
(17) Indebtedness consisting of the financing of insurance premiums;
(18) Indebtedness consisting of Guarantees incurred in the ordinary course of business under repurchase agreements or similar agreements in connection with the financing of sales of goods in the ordinary course of business; and
(19) additional Indebtedness in an aggregate principal amount not to exceed $40.0 million at any time outstanding pursuant to this Section 4.09(b)(19).
(c) For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in Sections 4.09(b)(1) through (19) above or is entitled to be incurred pursuant to the Coverage Ratio Exception, the Issuer, in its sole discretion, may divide and classify such Indebtedness in more than one of the types of Indebtedness described and may later redivide and reclassify such item into any one or more of the categories of Indebtedness described above (provided that at the time of reclassification it meets the criteria in such category or categories); provided that any Indebtedness outstanding under the Credit Facilities on the Release Date, after the application of the net proceeds from the sale of the Notes will be treated as Incurred on the Release Date under clause (3) of the second paragraph above. The maximum amount of Indebtedness that the Issuer or any Restricted Subsidiary may incur pursuant to this covenant will not be deemed to be exceeded solely as the result of fluctuations in the exchange rates of currencies. In determining the amount of Indebtedness outstanding under one of the clauses above, the outstanding principal amount of any particular Indebtedness of any Person shall be counted only once and any obligation of such Person or any other Person arising under any guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness shall be disregarded so long as it is permitted to be incurred by the Person or Persons incurring such obligation.
(d) Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, of the same class will not be deemed to be an incurrence of Indebtedness, Disqualified Stock or Preferred Stock.
(e) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness incurred pursuant to this Section 4.09, any other obligation of the obligor on such Indebtedness (or of any other Person who could have incurred such Indebtedness under this Section 4.09) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness.
(f) Notwithstanding the provisions of Sections 4.09(a) through (e), the Issuer will not, and will not permit any of its Restricted Subsidiaries other Guarantor to, Incur incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event which results in any such Restricted Subsidiary ceasing purports to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms (or by the terms of any agreement or instrument pursuant to which governing such new Indebtedness is issued or remains outstanding, is expressly made subordinate Indebtedness) subordinated in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may any other Indebtedness of the Company Issuer or a Subsidiary Guarantor that ranks equally with or subordinate of such other Guarantor, as the case may be, unless such Indebtedness is also by its terms made subordinated in right of payment to the Notes or the Guarantee of such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means to at least the same extent as such Indebtedness is subordinated in right of any payment to such other Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);the Issuer or such Guarantor, as the case may be.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company Partnership will not, and will not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, guarantee or in any Indebtedness ifmanner become directly or indirectly liable, immediately contingently or otherwise, for the payment, in each case, to “incur,” any Indebtedness, unless at the time of the incurrence and after giving pro forma effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromof the Indebtedness, the aggregate principal amount of all outstanding Indebtedness Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be Partnership is greater than 65% of Adjusted Total Assets as of any date of Incurrence2.00 to 1.00.
(b) The Company will not, and provisions of Section 1009(a) will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to prohibit the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and incurrence by the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company Partnership and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromfollowing items of Indebtedness (collectively, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:“Permitted Indebtedness”):
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(52) Indebtedness issued of the Partnership or a Restricted Subsidiary incurred for the making of expenditures for the improvement or repair, to the extent the improvements or repairs may be capitalized in exchange foraccordance with GAAP, or additions, including by way of acquisitions of businesses and related assets, to the net proceeds property and assets of which are used the Partnership and its Restricted Subsidiaries, including, without limitation, the acquisition of assets subject to extendoperating leases, refinanceIndebtedness incurred under the Credit Facilities, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred incurred by assumption in connection with such refinancing (any such actionadditions, including additions by way of acquisitions or capital contributions of businesses and related assets, to “Refinance”)the property and assets of the Partnership and its Restricted Subsidiaries; provided, that the aggregate principal amount of this Indebtedness outstanding at any time may not exceed $75 million;
(3) Indebtedness of the Partnership or a Restricted Subsidiary (a) incurred for any purpose permitted under the Credit Facilities, or (b) owing in an amount not to exceed respect of any Accounts Receivable Securitization, operating lease, or other off-balance sheet obligation existing on the amount so Refinanced; provided Issue Date that arises because, after the Issue Date, such off-balance sheet obligations are refinanced with Indebtedness, provided, that the proceeds aggregate principal amount of which are used to Refinance Subordinated Indebtedness, will be permitted this Indebtedness outstanding under this clause at any time may not exceed an amount equal to the sum of (5x) only if:$500 million plus (y) the amount, if any, by which the Borrowing Base as of the date of calculation exceeds the amount of the Borrowing Base as of December 31, 2003;
(A4) such new Indebtedness, by its terms Indebtedness of the Partnership owed to the General Partner or by an Affiliate of the terms of any agreement or instrument pursuant to which such new Indebtedness General Partner that is issued or remains outstanding, unsecured and that is expressly made subordinate subordinated in right of payment to the Notes Securities; provided, that the aggregate principal amount of this Indebtedness outstanding at least any time under this clause may not exceed $50 million and this Indebtedness has a final maturity date later than the final maturity date of the Securities;
(5) Indebtedness (a) owed by the Partnership or any Restricted Subsidiary to the Operating Partnership or any Restricted Subsidiary or (b) owed by the Operating Partnership or any Restricted Subsidiary to the Partnership or to any other Restricted Subsidiary;
(6) Permitted Refinancing Indebtedness (including, for the avoidance of doubt, Indebtedness incurred as permitted under the Consolidated Fixed Charge Coverage Ratio set forth in Section 1009(a) above);
(7) the incurrence by the Partnership or a Restricted Subsidiary of Indebtedness owing directly to its insurance carriers, without duplication, in connection with the Partnership’s, its Subsidiaries’ or its Affiliates’ self-insurance programs or other similar forms of retained insurable risks for their respective businesses, consisting of reinsurance agreements and indemnification agreements, and guarantees of the foregoing, secured by letters of credit; provided, that any Consolidated Fixed Charges associated with the Indebtedness evidenced by the reinsurance agreements, indemnification agreements, guarantees and letters of credit will be included, without duplication, in any determination of the Consolidated Fixed Charge Coverage Ratio test set forth in Section 1009(a) above;
(8) Indebtedness of the Partnership and its Restricted Subsidiaries in respect of Capital Leases; provided, that the aggregate amount of this Indebtedness outstanding at any time may not exceed $30 million;
(9) Indebtedness of the Partnership and its Restricted Subsidiaries represented by letters of credit supporting (a) obligations under workmen’s compensation laws, (b) obligations to suppliers of propane or energy commodity derivative providers in the ordinary course of business consistent with past practices not to exceed $15 million at any one time outstanding and (c) the repayment of Indebtedness permitted to be incurred under this Indenture;
(10) surety bonds and appeal bonds required in the ordinary course of business or in connection with the enforcement of rights or claims of the Partnership or any of its Subsidiaries or in connection with judgments that do not result in a Default or Event of Default;
(11) Indebtedness of the Partnership or its Restricted Subsidiaries incurred in connection with acquisitions of retail propane businesses in favor of the sellers of such businesses in an aggregate principal amount not to exceed $20 million in any fiscal year and not to exceed $70 million at any one time outstanding; provided, that the principal amount of such Indebtedness incurred in connection with any such acquisition shall not exceed the fair market value of the assets so acquired and, to the extent that issued by the Partnership, such Indebtedness to be Refinanced is expressly subordinated to the NotesSecurities;
(12) unsecured Indebtedness of the Partnership or its Restricted Subsidiaries which is not otherwise a Permitted Indebtedness in an aggregate outstanding amount not to exceed the greater of (a) $50 million and (b) 5% of Consolidated Net Tangible Assets; and
(B13) such new Indebtednessthe Notes (other than Additional Notes). For purposes of determining compliance with this Section 1009, determined as in the event that an item of Indebtedness meets the criteria of more than one of the date categories of Incurrence Permitted Indebtedness described in clauses (1) through (13) above or is entitled to be incurred in compliance with the Consolidated Fixed Charge Coverage Ratio pursuant to Section 1009(a) above, the Partnership, may, in its sole discretion, classify (or later reclassify) in whole or in part such items of Indebtedness in any manner that complies with this Section 1009, and such new Indebtedness, does not mature prior to the Stated Maturity item of Indebtedness or a portion thereof may be classified (or later reclassified) in whole or in part as having been incurred under more than one of the Subordinated applicable clauses of Permitted Indebtedness to be Refinanced, and or in compliance with the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that Consolidated Fixed Charge Coverage Ratio set forth in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);Section 1009(a) above.
Appears in 1 contract
Sources: First Supplemental Indenture (Ferrellgas Partners Finance Corp)
Incurrence of Indebtedness. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount ratio of all outstanding consolidated Indebtedness of the Company Issuer and its the Restricted Subsidiaries on a consolidated basis would be greater than 65% of to Adjusted Total Assets as of any date of Incurrencewould exceed 0.65 to 1.00.
(b) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount ratio of all outstanding Subsidiary Indebtedness and consolidated Secured Indebtedness of the Company Issuer and its the Restricted Subsidiaries on a consolidated basis would be greater than 45% of to Adjusted Total Assets as of any date of Incurrencewould exceed 0.45 to 1.00.
(c) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the Interest Coverage Ratio of the Company Issuer and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 1.50 to 1.0 1.0; provided that for purposes of calculating the Interest Coverage Ratio pursuant to this clause (c), for each of the first four (4) full Fiscal Quarters commencing with the Fiscal Quarter beginning on July 1, 2020, Consolidated EBITDA for any such Fiscal Quarter shall be calculated on a Pro Forma Basis)as the greater of (x) Consolidated EBITDA in such Fiscal Quarter and (y) zero; provided, further that, for so long as any Subsidiary of the Issuer Guarantees the Notes, the amount of additional Indebtedness that may be Incurred from and after the Issue Date by Restricted Subsidiaries that are not Subsidiary Guarantors under this clause (c) shall not exceed the greater of $500.0 million and an amount equal to 7.5% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding.
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company Issuer or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company Issuer or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) the greater of $3,400.0 2,500.0 million plus (y) the aggregate principal and an amount equal to 35.0% of Adjusted Total Assets at any time outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;Refinancing;
(2) Indebtedness owed to:
(A) The Company an Issuer or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; note; or
(B) any other Restricted Subsidiary; Subsidiary; provided that if the Company Issuer or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the CompanyIssuer, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); Guarantor; and provided further that any event 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 Issuer or any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);2)(B);
(3) the Notes to be issued on the Issue DateDate and the related Note Guarantees;
(4) Indebtedness outstanding as of the Issue Date;Date (excluding Indebtedness described in clause (1) above);
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund refund, other outstanding Indebtedness that was incurred under the provisions of paragraph (other than clauses (1a), (2b) or (c) of this covenant or clauses (3), (64), (5), (8), (9), (10), (1114), (17), (18), (24), (25) and or (1327) of this Section 4.08(d)) , in an amount not to exceed the amount so Refinanced plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums premiums, customary reserves required to be funded and maintained in connection with such Indebtedness and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; ” or a “Refinancing”); provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, Indebtedness will be permitted under this clause (5) only if:if (except in the case of COVID-19 Relief Funds and Refinancings thereof):
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; , if applicable; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the earlier of (i) the Stated Maturity of the Subordinated Indebtedness to be Refinanced, or (ii) the date that is 91 days after the Stated Maturity of the Notes, and the Average Life of such new Indebtedness is at least equal to the earlier of (1) the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and , or (2) 91 days more than the Average Life of the Notes; provided further, that in no event may Indebtedness of the Company Issuer or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);
(6) (i) obligations (contingent or otherwise) existing or arising under any Hedging Obligations or Swap Contracts (including Secured Hedge Agreements) entered into for the purpose of mitigating risks associated with fluctuations in interest rates (including both fixed to floating and floating to fixed contracts), foreign exchange rates or commodity price fluctuations in a non-speculative manner and (ii) Indebtedness consisting of any Permitted Bond Hedge Transaction or any Permitted Warrant Transaction;
(7) Indebtedness under Secured Cash Management Agreements, cash pooling agreements with hotel management companies and in respect of netting services, any Overdraft Line and otherwise in connection with deposit accounts, commercial credit cards, stored value cards, purchasing cards and treasury management services, including any obligations pursuant to Cash Management Agreements, and other netting services, overdraft protections, automated clearing-house arrangements, employee credit card programs, controlled disbursement, ACH transactions, return items, interstate depository network service, Society for Worldwide Interbank Financial Telecommunication transfers, cash pooling and operational foreign exchange management, and in each case, similar arrangements and otherwise in connection with cash management, including cash management arrangements among the Issuer and its Subsidiaries;
(8) (A) Finance Leases, synthetic lease obligations, purchase money obligations or mortgage financings Incurred after the Issue Date and (B) Indebtedness secured by purchase money Liens, in an aggregate outstanding principal amount for clauses (A) and (B) on a combined basis Incurred from and after the Issue Date not to exceed the greater of $500.0 million and an amount equal to 7.5% of Adjusted Total Assets at any time outstanding; provided, however, that, subject to clause (g), any Refinancing Incurred under clause (5) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (8) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (8);
(9) Indebtedness of the Issuer, to the extent the net proceeds therefrom are promptly:
(A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change of Control Triggering Event; or
(B) deposited to defease or discharge the Notes as described in Articles 8 and 11 hereof;
(10) Indebtedness incurred in connection with any Sale and Leaseback Transaction;
(11) customer deposits and advance payments received from customers in the ordinary course of business;
(12) any Guarantee issued by the Issuer pursuant to the matters described in any indemnity agreements entered into for the benefit of a title company that has been engaged by the Issuer or any of its Restricted Subsidiaries;
(13) Guarantees by the Issuer or any Restricted Subsidiary of any Indebtedness of the Issuer or any Restricted Subsidiary; provided that such Indebtedness was permitted to be Incurred pursuant to this covenant other than under this clause (13); provided further that any such Guarantees by the Issuer or any Subsidiary Guarantor of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor is subordinated in right of payment to the obligations of the Issuer and the Subsidiary Guarantors under the Notes;
(14) Guarantees issued by the Issuer or any of its Restricted Subsidiaries of any Indebtedness of Joint Ventures or Unrestricted Subsidiaries Incurred from and after the Issue Date in an amount not to exceed the greater of $180.0 million and 2.5% of Adjusted Total Assets at any time outstanding, if both before and after giving effect to the incurrence of each such Guarantee, no Default or Event of Default has occurred or is continuing; provided, however, that, subject to clause (g), any Refinancing Incurred under clause (5) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (14) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (14);
(15) Indebtedness of the Issuer or any of its Restricted Subsidiaries supported by a letter of credit issued under any Credit Facilities in an aggregate principal amount not to exceed the stated amount of such letter of credit (but which stated amount may include the amount of any anticipated premiums, expenses (including upfront fees and original issue discount) and any accretion in the principal amount thereof);
(16) contractual indemnity obligations entered into by the Issuer or any of its Restricted Subsidiaries in the ordinary course of ownership or operation of their respective Properties;
(17) Indebtedness (A) of a Person outstanding on the date of any acquisition of such Person, including through the acquisition of a Person that becomes a Restricted Subsidiary or is acquired by, or merged or consolidated with or into, the Issuer or any Restricted Subsidiary, or that is assumed by the Issuer or any Restricted Subsidiary in connection with any such acquisition (other than Indebtedness incurred by such Person in connection with, or contemplation of, such acquisition, merger or consolidation), (B) Incurred to provide all or any portion of the funds utilized to acquire, or to consummate the transaction or series of related transactions in connection with or in contemplation of any acquisition, of a Person that becomes a Restricted Subsidiary, (C) assumed in connection with an asset acquisition by the Issuer or a Restricted Subsidiary or (D) Incurred in connection with any Investment in a third party permitted under this Indenture, in each case under this clause (17), as long as immediately after giving effect thereto, either (i) the Interest Coverage Ratio on a Pro Forma Basis would be at least 1.50 to 1.0 or (ii) the Interest Coverage Ratio on a Pro Forma Basis would be greater than or equal to the actual Interest Coverage Ratio immediately prior to such acquisition, incurrence or assumption, in each case under this clause (17), with the Interest Coverage Ratio calculated in accordance with clause (c) above;
(18) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, together with any other Indebtedness Incurred from and after the Issue Date pursuant to this clause (18) or clause (c) above by such Restricted Subsidiaries, in an amount not to exceed the greater of $500.0 million and an amount equal to 7.5% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding; provided, however, that, subject to clause (g), any Refinancing Incurred under clause (5) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (18) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (18);
Appears in 1 contract
Sources: Indenture (RLJ Lodging Trust)
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness if(including Acquired Debt); provided that the Company and any Restricted Subsidiary may incur Indebtedness (including Acquired Debt), if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately after giving effect preceding the date on which such additional Indebtedness is incurred would have been at least 5.0 to the Incurrence of such Indebtedness and the receipt and 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred at the beginning of such four-quarter period; provided, further, that the amount of Indebtedness (including Acquired Debt) that may be incurred pursuant to the foregoing by Restricted Subsidiaries that are not Guarantors of the Notes shall not exceed $10.0 million at any one time outstanding.
(b) Notwithstanding the prohibitions of Section 4.09(a), the Company may incur any of the following items of Indebtedness (collectively, “Permitted Debt”):
(i) the incurrence by the Company and any Restricted Subsidiary of Indebtedness under Credit Facilities (including amounts outstanding on the Issue Date); provided that the aggregate principal amount of all outstanding Indebtedness under such Credit Facilities (including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (i)) permitted by this clause (i) does not exceed $215.0 million less any permanent reductions of Indebtedness thereunder actually made with the Net Proceeds of Asset Sales in accordance with Section 4.07(c)(ii);
(ii) the incurrence by the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.Existing Indebtedness (excluding amounts outstanding under the Credit Agreement at the Issue Date);
(biii) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of incurrence by the Company and its Restricted Subsidiaries on a consolidated basis would be greater the Guarantors of Indebtedness represented by the Notes and the Note Guarantees (other than 45% of Adjusted Total Assets as of any date of Incurrence.Additional Notes);
(civ) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, incurrence by the Company or any of its Restricted Subsidiaries may Incur of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each and case, incurred for the purpose of financing all or any part of the following:
(1) Indebtedness purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary (whether through the direct purchase of assets or the purchase of Equity Interests of any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereofPerson owning such assets), in an aggregate principal amount at (including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness incurred pursuant to this clause (yiv)) not to exceed $12.5 million at any time outstanding;
(v) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace, Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a) or clause (i), (ii), (iii), (iv), (v), (viii), (ix) or (xiii) of this Section 4.09(b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with between or among such refinancing;
(2) Indebtedness owed toRestricted Subsidiaries; provided that:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the obligor on such Indebtedness and such Indebtedness is owed to or held by a Restricted Subsidiary that is not a Guarantor, such Indebtedness must be expressly subordinated to the prior payment in right full in cash of payment all Obligations with respect to the Notes, in the case of the Company, or the Note GuaranteeGuarantee of such Guarantor, in the case of a Subsidiary Guarantor Guarantor; and
(except to the extent prohibited by applicable Gaming Law); and provided further B) (1) any subsequent issuance or transfer of Equity Interests that any event which results in any such Restricted Subsidiary ceasing to be Indebtedness being held by a Person other than the Company or a Restricted Subsidiary thereof and (2) any sale or any subsequent other transfer of any such Indebtedness (other than to a Person that is not either the Company or any other a Restricted Subsidiary) 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 (2)(Bvi);
(3vii) the Notes incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of hedging interest rate risk with respect to be issued on the Issue Date;
(4) any Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be is permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness this Indenture to be Refinanced is subordinated to the Notes; andoutstanding and not for speculative purposes;
(Bviii) such new Indebtedness, determined as the Guarantee by the Company or any of the date its Restricted Subsidiaries of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Restricted Subsidiary Guarantor of the Company that ranks equally with was permitted to be incurred by another provision of this Section 4.09;
(ix) the incurrence by the Company or subordinate any of its Restricted Subsidiaries of additional Indebtedness (other than indebtedness permitted by Section 4.09(a) or clauses (i) through (xvi) of this Section 4.09(b)) in right of payment to the Notes an aggregate principal amount (or such Subsidiary Guarantor’s Note Guaranteeaccrued value, as applicable) at any time outstanding, be Refinanced by means of including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any such Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor incurred pursuant to this clause (5ix), not to exceed $25 million;
(x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of judgment, appeal, surety, bonds required in the course of licensure performance and other like bonds, bankers acceptances and letters of credit provided by the Company and its Subsidiaries in the ordinary course of business and payment obligations in connection with self-insurance and similar obligations (including any similar Indebtedness incurred to refinance, retire, renew, defease, refund or otherwise replace any Indebtedness referred to in this clause (x));
(xi) Indebtedness incurred by the Company or any of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price, earnout or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries, made, given or entered into in connection with the acquisition or disposition by the Company or any of its Subsidiaries of all or a portion of the Equity Interests, business or assets of the Company or any Subsidiary of the Company;
(xii) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within five Business Days of receipt of notice of such incurrence;
(xiii) Acquired Debt (including Acquired Debt incurred by any Restricted Subsidiary prior to the time that such Restricted Subsidiary was acquired by the Company), provided that after giving effect to the incurrence of such Indebtedness pursuant to this Section 4.09(b)(xiii) and the related acquisition transaction, either (a) the Company would have been able to incur $1.00 of Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) or (b) the Company’s Fixed Charge Coverage Ratio would be greater than such ratio immediately prior to such acquisition transaction;
(xiv) any Guarantee by the Company or any Restricted Subsidiary of Indebtedness or other obligations of the Company or any of its Restricted Subsidiaries so long as the incurrence of such Indebtedness or obligation by the Company or the Restricted Subsidiary incurring such Indebtedness or obligation is permitted by this Indenture;
(xv) Indebtedness of Restricted Subsidiaries that are not Guarantors in an amount outstanding at any time not to exceed $10.0 million; and
(xvi) Indebtedness of Canadian Subsidiaries in an amount outstanding at any time not to exceed $20.0 million. For purposes of determining compliance with this Section 4.09, the outstanding principal amount of any Indebtedness shall be counted only once such that (without limitation) any obligation arising under any Guarantee or with respect to letters of credit supporting such Indebtedness shall not constitute a separate incurrence, or amount outstanding, of, or additional, Indebtedness for any purposes hereunder, and in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in Section 4.09 (b)(i) through (b)(xvi) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to divide and classify (or later reclassify in whole or in part in its sole discretion) such item of Indebtedness in any manner that complies with this Section 4.09 and such Indebtedness will be treated as having been incurred pursuant to such clause or clauses or Section 4.09(a), as the case may be, as designated by the Company; provided that any incurrences of Indebtedness under Credit Facilities must be first applied to clause (i) above. Accrual of interest or dividends, the accretion of accreted value or liquidation preference and the payment of interest or dividends in the form of additional Indebtedness or Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09. In addition, with respect to any non-U.S. dollar-denominated Indebtedness, the principal amount of any such Indebtedness will be calculated in an equivalent amount of U.S. dollars based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness, provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in the same or a different non-U.S. 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 will 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 refinanced.
Appears in 1 contract
Sources: Indenture (ReFinance America, LTD)
Incurrence of Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries the Guarantors to, Incur any directly or indirectly, incur Indebtedness ifthat will constitute First Lien Debt, immediately after giving effect to unless the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
CNTA Ratio (b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences incurrence and the application of Indebtedness pursuant the net proceeds thereof) is equal to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and or greater than 1.42 to 1.00.
(b) above) plus (2) in the case For purposes of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereofSection 4.07, the aggregate amount of feesFirst Lien Debt outstanding as of any date of determination will be calculated as the sum of, underwriting discountswithout duplication:
(1) the aggregate outstanding principal amount of all Indebtedness (or, accrued and unpaid interestif such Indebtedness is issued with original issue discount, premiums and other costs and expenses Incurred in connection with such refinancing;the then accreted value thereof) for borrowed money that constitutes First Lien Debt, plus
(2) the aggregate face amount of any letters of credit or similar instruments issued but not yet drawn that, when drawn, would constitute First Lien Debt, and the aggregate amount of reimbursement obligations in respect of drawn letters of credit or similar instruments that constitute First Lien Debt, plus
(3) the aggregate amount of undrawn and unutilized commitments under which any First Lien Debt could be drawn and/or utilized as of such date, plus
(4) the aggregate outstanding principal amount of any First Lien Debt (or, if such Indebtedness owed is issued with original issue discount, the then accreted value thereof) outstanding consisting of notes, bonds, debentures, credit agreements (including any Eligible Commodity Hedge Financing) or similar instruments or agreements.
(c) Section 4.07(a) hereof will not apply to:
(1) any Specified Cash Management and Swap Obligations, other Cash Management Obligations that would constitute First Lien Debt and any First Lien Hedging Obligations;
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
Indebtedness under the Credit Agreement outstanding on the date of this Indenture, plus (B) up to $2.0 billion in incremental term debt thereunder (or debt securities issued in lieu thereof) incurred to repay or redeem secured debt, secured lease obligations or preferred securities of any other Restricted Subsidiary; provided Project Subsidiary pursuant to the provisions of Section 2.27(a) thereof as in effect on the date of this Indenture (or as amended or waived, but solely with regard to any amendment or waiver of (i) any most favored nation pricing required thereunder, (ii) the Schedule Limit as set forth therein or (iii) the requirement that if the Company or be in pro forma compliance with any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(Bfinancial covenants thereunder);
(3) the Notes to be issued on the Issue DateNotes;
(4) any accretion of original issue discount or the payment of interest on any Indebtedness in the form of Indebtedness with the same terms (it being understood that each will be taken into account in determining the aggregate amount of First Lien Debt outstanding as of the Issue Datespecified in Section 4.07(b)(1) hereof);
(5) any incurrence of Indebtedness issued in exchange forthat constitutes First Lien Debt (A) resulting from the drawing of, or reimbursement obligations under, any letters of credit or similar instruments or (B) resulting from borrowings under any undrawn and unutilized commitments to lend such Indebtedness, in each case, that were (i) in existence as of the net proceeds date of which are used this Indenture (including without limitation under the Credit Agreement, as in effect on the date of this Indenture) or (ii) included in any calculation of the amount of First Lien Debt outstanding pursuant to extendSection 4.07(b) hereof in connection with an incurrence of First Lien Debt pursuant to Section 4.07(a) hereof; and, in either case, any Permitted Replacement Commitments that replaced such letters of credit, similar obligations and commitments;
(6) any Permitted Refinancing Indebtedness incurred to renew, refund, refinance, renew, replace, defeasedefease or discharge any Indebtedness that was permitted to be incurred pursuant to this Section 4.07; and
(7) any Eligible Commodity Hedge Financings, discharge so long as the lenders thereunder (or refund other outstanding their representatives on their behalf) become a party to, or consent or agree to be bound by the terms and conditions, of the Collateral Agency and Intercreditor Agreement.
(d) Notwithstanding the foregoing, the Company or any of the Guarantors may not incur (1) additional Indebtedness (other than Specified Cash Management and Swap Obligations, other Cash Management Obligations that would constitute First Lien Debt, any First Lien Hedging Obligations and any extension, renewal or refinancing of the Eligible Commodity Hedge Financings existing on the date of this Indenture) pursuant to Section 4.07(a) hereof, (2) any Permitted Refinancing Indebtedness with respect to Indebtedness incurred under clauses (1), (2), (63), (10), 4) or (11) and (135) of this Section 4.08(d)4.07(c) plus hereof or (3) any Permitted Refinancing Indebtedness with respect to any of the aggregate amount foregoing, in each case that will constitute First Lien Debt unless:
(1) The Company and the Guarantors shall enter into, and deliver to the Collateral Agent, in the sole discretion of feesthe Collateral Agent, underwriting discountsa mortgage modification or new mortgage with regard to each Mortgaged Property, accrued and unpaid interestin proper form for recording in all applicable jurisdictions, premiums and other costs and expenses Incurred in a form reasonably satisfactory to the Collateral Agent and, as applicable, consistent with the mortgage modifications delivered in connection with the issuance of the Notes;
(2) The Company or the applicable Guarantor will cause to be delivered a local counsel opinion with respect to each Mortgaged Property in form and substance, and issued by law firms, in each case, reasonably satisfactory to the Collateral Agent and, as applicable, consistent with the local counsel opinions delivered in connection with the issuance of the Notes;
(3) The Company or the applicable Guarantor will cause a title company approved by the Collateral Agent to have delivered to the Collateral Agent an endorsement to each title insurance policy then in effect for the benefit of the Secured Parties, date down(s) or other evidence reasonably satisfactory to the Collateral Agent (which may include a new title insurance policy) (each such refinancing (any such actiondelivery, to a “RefinanceTitle Datedown Product”), in an amount each case insuring that (i) the priority of the Lien of the applicable mortgage(s) as security for the Notes has not changed, (ii) since the date of the Title Datedown Product delivered most recently prior to exceed the amount so Refinanced; provided that (and not in connection with) such additional Indebtedness, there has been no change in the proceeds condition of title and (iii) there are no intervening liens or encumbrances which are used may then or thereafter take priority over the Lien of the applicable mortgage(s), in each case other than with respect to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the NotesPermitted Liens; and
(B4) such new IndebtednessThe Company or the applicable Guarantor will, determined as upon the request of the date of Incurrence of such new IndebtednessCollateral Agent, does not mature prior deliver to the Stated Maturity approved title company, the Collateral Agent and/or all other relevant third parties all other items reasonably necessary to maintain the continuing priority of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life Lien of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of mortgages as security for the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);Notes.
Appears in 1 contract
Sources: Indenture (Calpine Corp)
Incurrence of Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, Incur, directly or indirectly, any Indebtedness; provided, however, that the Company and any Restricted Subsidiary may Incur any Indebtedness if, immediately if on the date of such Incurrence and after giving effect to thereto the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis Leverage Ratio would be greater than 65% of Adjusted Total Assets as of any date of Incurrencenot exceed 5.5:1.0.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to Notwithstanding the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses foregoing paragraph (a), (b) and (c) of this Section 4.08, the Company or and any of its Restricted Subsidiaries Subsidiary may Incur each and all of the followingfollowing Indebtedness:
(1) Bank Indebtedness of (including, without limitation, Bank Indebtedness Incurred under the Company or Bridge Facility, and any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), Tranche C Loan) in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancingexceeding £5,300,000,000;
(2) Indebtedness of the Company owed to:
(A) The Company to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary Guarantor evidenced owed to and held by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligorRestricted Subsidiary; provided, the Indebtedness is subordinated in right however, that (A) any subsequent issuance or transfer of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary Capital Stock or any subsequent transfer of such Indebtedness or any other event that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary shall be deemed to constitute the Incurrence of such Indebtedness by the obligor thereon, (B) if an Intermediate Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly subordinated for the benefit of the Holders to the prior payment in full in cash of all obligations with respect to the relevant Intermediate Guarantee and (C) if the Issuer is the obligor on such Indebtedness, such Indebtedness is expressly subordinated for the benefit of the Holders to the prior payment in full in cash of all obligations with respect to the Notes;
(3) Indebtedness (A) represented by the Notes (not including any Additional Notes), (B) represented by the Intermediate Guarantees and the Senior Subordinated Subsidiary Guarantee, and (C) outstanding on the Closing Date (other than the Indebtedness described in clause (2) of this paragraph (b));
(4) Indebtedness consisting of Refinancing Indebtedness Incurred in respect of any Indebtedness described in clauses (3) or (4) of this paragraph (b) or under paragraph (a);
(5) Indebtedness of a Restricted Subsidiary acquired by the Company, the Issuer or any other Restricted Subsidiary after the Closing Date Incurred and outstanding on or prior to the Company date on which such Restricted Subsidiary was acquired by the Company, the Issuer or any other Restricted Subsidiary (other than Indebtedness Incurred in contemplation of, in connection with, as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Subsidiary of or was otherwise acquired by the Company, the Issuer or any other Restricted Subsidiary) shall be deemedor any Refinancing Indebtedness in respect thereof, not exceeding £75 million in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B)the aggregate at any one time outstanding;
(3) the Notes to be issued on the Issue Date;
(46) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtednessin respect of performance, by its terms bid, completion, surety or appeal bonds provided by the terms Company, the Issuer and any other Restricted Subsidiary in the ordinary course of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
their business and (B) such new Indebtedness, determined as under Interest Rate Agreements and Currency Agreements entered into for bona fide hedging purposes of the date of Incurrence of such new IndebtednessCompany, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, Issuer and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any other Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5)in the ordinary course of business;
Appears in 1 contract
Sources: Indenture (NTL Inc)
Incurrence of Indebtedness. (a) The Company Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, incur, directly or indirectly, any Indebtedness; provided that the Issuer or any Guarantor may incur Indebtedness if, immediately after giving effect to such incurrence, the Consolidated Coverage Ratio is at least 2.0 to 1.0 determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, and the application of proceeds therefrom, had occurred at the beginning of such four-quarter period (this proviso, the “Coverage Ratio Exception”).
(b) Section 4.09(a) will not prohibit incurrence of the following Indebtedness (collectively, “Permitted Indebtedness”):
(1) the Notes issued on the Issue Date and any related Guarantees;
(2) Indebtedness of the Issuer or any Restricted Subsidiary to the extent outstanding on the Issue Date (other than Indebtedness under the Credit Facilities);
(3) Indebtedness of the Issuer or any Restricted Subsidiary under Credit Facilities in an aggregate amount at any time outstanding pursuant to this clause (3) (including amounts outstanding on the Issue Date) not to exceed the greater of:
(A) $1,500.0 million; and
(B) the sum of (x) $1,100.0 million, (y) 75% of the net book value of the Inventory of the Issuer and the Restricted Subsidiaries and (z) 85% of the net book value of the accounts receivable of the Issuer and the Restricted Subsidiaries, in each case determined on a consolidated basis in accordance with GAAP;
(4) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to the Coverage Ratio Exception, clause (1) of this Section 4.09(b), clause (2) of this Section 4.09(b) (other than any Indebtedness owed to the Issuer or any of its Subsidiaries), this clause (4), or clause (16) of this Section 4.09(b);
(5) Indebtedness owed by the Issuer or any Restricted Subsidiary to the Issuer or a Restricted Subsidiary; provided that
(A) any such Indebtedness owed by the Issuer shall be subordinated by its terms to the prior payment in full in cash of all Obligations with respect to the Notes, and any such Indebtedness owed by any Guarantor (other than to the Issuer or any other Guarantor) shall be subordinated by its terms to the prior payment in full in cash of all Obligations with respect to the Guarantee of such Guarantor; and
(B) if such Indebtedness is held by a Person other than the Issuer or a Restricted Subsidiary, the Issuer or such Restricted Subsidiary shall be deemed to have incurred Indebtedness not permitted by this clause (5);
(6) (x) the guarantee by the Issuer or any Guarantor of Indebtedness of the Issuer or a Guarantor and (y) the guarantee by any Restricted Subsidiary that is not a Guarantor of Indebtedness of any other Restricted Subsidiary that is not a Guarantor; provided that, in each case, the Indebtedness being guaranteed is incurred pursuant to the Coverage Ratio Exception or is Permitted Indebtedness;
(7) Hedging Obligations;
(8) Purchase Money Indebtedness and Capital Lease Obligations of the Issuer or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any assets (including capital expenditures of the Issuer or any Restricted Subsidiary), and Refinancings thereof, in an aggregate amount at any time outstanding pursuant to this clause (8) not to exceed the greater of (x) $75.0 million and (y) 5.0% of the Consolidated Net Tangible Assets of the Issuer;
(9) Indebtedness of any Foreign Subsidiary in an aggregate amount not to exceed at any time outstanding pursuant to this clause (9) not to exceed the greater of (x) $75.0 million and (y) 5.0% of the Consolidated Net Tangible Assets of the Issuer;
(10) Indebtedness of the Issuer or any of its Restricted Subsidiaries represented by worker’s compensation claims and other statutory or regulatory obligations, self-insurance obligations, tender, bid, performance, government contract, surety or appeal bonds, standby letters of credit and warranty and contractual service obligations of like nature, trade letters of credit or documentary letters of credit, in each case to the extent incurred in the ordinary course of business of the Issuer or such Restricted Subsidiary;
(11) customary indemnification, adjustment of purchase price or similar obligations, in each case, incurred in connection with the acquisition or disposition of any assets of the Issuer or any Restricted Subsidiary (other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such assets for the purpose of financing such acquisition);
(12) obligations in respect of performance bonds and completion, guarantee, surety and similar bonds in the ordinary course of business;
(13) Indebtedness in respect of Treasury Services Agreements (including Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds);
(14) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(15) Indebtedness consisting of take-or-pay obligations contained in supply agreements relating to products, services or commodities of a type that the Issuer or any of its Subsidiaries uses or sells in the ordinary course of business;
(16) Acquired Indebtedness; provided that after giving effect to such acquisition or merger, either
(A) the Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or
(B) the Consolidated Coverage Ratio of the Issuer and the Restricted Subsidiaries is equal to or greater than immediately prior to such acquisition or merger;
(17) Indebtedness consisting of the financing of insurance premiums;
(18) Indebtedness consisting of Guarantees incurred in the ordinary course of business under repurchase agreements or similar agreements in connection with the financing of sales of goods in the ordinary course of business;
(19) additional Indebtedness in an aggregate principal amount not to exceed $75.0 million at any time outstanding pursuant to this clause (19); and
(20) the incurrence of Indebtedness by Unrestricted Subsidiaries.
(c) For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (1) through (20) above or is entitled to be incurred pursuant to the Coverage Ratio Exception, the Issuer shall, in its sole discretion, classify such item of Indebtedness and may divide and classify such Indebtedness in more than one of the types of Indebtedness described and may later reclassify such item into any one or more of the categories of Indebtedness described above (provided that at the time of reclassification it meets the criteria in such category or categories). The maximum amount of Indebtedness that the Issuer or any Restricted Subsidiary may incur pursuant to this covenant will not be deemed to be exceeded solely as the result of fluctuations in the exchange rates of currencies. In determining the amount of Indebtedness outstanding under one of the clauses above, the outstanding principal amount of any particular Indebtedness of any Person shall be counted only once and any obligation of such Person or any other Person arising under any guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness shall be disregarded so long as it is permitted to be incurred by the Person or Persons incurring such obligation.
(d) Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, of the same class will not be deemed to be an incurrence of Indebtedness, Disqualified Stock or Preferred Stock.
(e) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness incurred pursuant to and in compliance with, this Section 4.09, any other obligation of the obligor on such Indebtedness (or of any other Person who could have incurred such Indebtedness under this section) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness.
(f) Notwithstanding the provisions of clauses (a) through (e) of this Section 4.09, the Issuer will not, and will not permit any of its Restricted Subsidiaries other Guarantor to, Incur incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event which results in any such Restricted Subsidiary ceasing purports to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms (or by the terms of any agreement or instrument pursuant to which governing such new Indebtedness is issued or remains outstanding, is expressly made subordinate Indebtedness) subordinated in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may any other Indebtedness of the Company Issuer or a Subsidiary Guarantor that ranks equally with or subordinate of such other Guarantor, as the case may be, unless such Indebtedness is also by its terms made subordinated in right of payment to the Notes or the Guarantee of such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means to at least the same extent as such Indebtedness is subordinated in right of any payment to such other Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);the Issuer or such Guarantor, as the case may be.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, Incur any Other Indebtedness if, immediately after giving effect to the Incurrence of such Other Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount ratio of all outstanding Other Indebtedness to Consolidated EBITDA would be greater than 3:1.
(i) Senior Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of outstanding at any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), time in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal 2.5 million, less any amount of any outstanding Incremental Term Loans Indebtedness permanently repaid as provided under Section 5.10; (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2ii) Indebtedness owed to:
(A) The to the Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
note or (B) to any other of its Restricted SubsidiarySubsidiaries; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further PROVIDED that any event 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 any other another Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(Bii);
; (3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5iii) Indebtedness issued in exchange for, or the net proceeds of which are used to extendrefinance or refund, refinancethen outstanding Indebtedness, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), refinancings thereof in an amount not to exceed the amount so Refinancedrefinanced or refunded (plus premiums, accrued interest, fees and expenses); provided PROVIDED that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinancedrefinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinancedrefinanced or refunded; and provided further, PROVIDED FURTHER that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor of the Company pursuant to this clause (5iii);; (iv) Indebtedness (A) in respect of performance, surety or appeal bonds provided in the ordinary course of business, and (B) under Currency Agreements and Interest Rate Agreements; PROVIDED that such agreements do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder; (v) Indebtedness of the Company not to exceed, at any one time outstanding, 1.5 times the Net Cash Proceeds received by the Company after the Closing Date from the issuance and sale of its Capital Stock (other than Redeemable Stock and Preferred Stock that provides for the payment of dividends in cash); (vi) Indebtedness up to $10 million outstanding at any time to the extent such Indebtedness is secured by Liens permitted under clause (vi) of the second paragraph of Section 5.12 and (vii) Indebtedness of the Company or a Restricted Subsidiary, to the extent the proceeds thereof are immediately used to purchase Securities tendered in an Offer to Purchase made as a result of a Change of Control.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, Incur, directly or indirectly, any Indebtedness; provided, however, that the Company and any Restricted Subsidiary may Incur any Indebtedness if, immediately if on the date of such Incurrence and after giving effect to thereto the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis Leverage Ratio would be greater than 65% of Adjusted Total Assets as of any date of Incurrencenot exceed 5.5:1.0.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to Notwithstanding the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses foregoing paragraph (a), (b) and (c) of this Section 4.08, the Company or and any of its Restricted Subsidiaries Subsidiary may Incur each and all of the followingfollowing Indebtedness:
(1) Bank Indebtedness of (including, without limitation, Bank Indebtedness Incurred under the Company Existing Credit Facility) or any of other Pari Passu Lien Obligation (including the Subsidiary Guarantors outstanding under Credit Facilities and Notes issued on the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), Closing Date) in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancingexceeding £5,300,000,000;
(2) Indebtedness of the Company owed to:
(A) The Company to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary Guarantor evidenced owed to and held by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligorRestricted Subsidiary; provided, the Indebtedness is subordinated in right however, that (A) any subsequent issuance or transfer of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary Capital Stock or any subsequent transfer of such Indebtedness or any other event that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary shall be deemed to constitute the Incurrence of such Indebtedness by the obligor thereon or (B) if the Issuer or the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated for the benefit of the Holders to the prior payment in full in cash of all obligations with respect to the Notes or the Note Guarantee by the Company, as the case may be;
(3) Indebtedness (A) represented by the Notes and the Exchange Notes (not including any Additional Notes); and (B) outstanding on the Closing Date (other than the Indebtedness described in clauses (1) and (2) of this paragraph (b));
(4) Indebtedness consisting of Refinancing Indebtedness Incurred in respect of any Indebtedness described in clauses (3) or (4) of this paragraph (b) or under paragraph (a);
(5) Indebtedness of a Restricted Subsidiary acquired by the Company, the Issuer or any other Restricted Subsidiary after the Closing Date Incurred and outstanding on or prior to the Company date on which such Restricted Subsidiary was acquired by the Company, the Issuer or any other Restricted Subsidiary (other than Indebtedness Incurred in contemplation of, in connection with, as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Subsidiary of or was otherwise acquired by the Company, the Issuer or any other Restricted Subsidiary) shall be deemedor any Refinancing Indebtedness in respect thereof, not exceeding £75 million in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B)the aggregate at any one time outstanding;
(3) the Notes to be issued on the Issue Date;
(46) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtednessin respect of performance, by its terms bid, completion, surety or appeal bonds provided by the terms Company, the Issuer and any other Restricted Subsidiary in the ordinary course of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
their business and (B) such new Indebtedness, determined as under Interest Rate Agreements and Currency Agreements entered into for bona fide hedging purposes of the date of Incurrence of such new IndebtednessCompany, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, Issuer and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any other Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5)in the ordinary course of business;
Appears in 1 contract
Sources: Indenture (Virgin Media Inc.)
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness if(including Acquired Debt); provided, however, that the Company and any Restricted Subsidiary may incur Indebtedness (including Acquired Debt), if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately after giving effect preceding the date on which such additional Indebtedness is incurred would have been at least 2 to the Incurrence of such Indebtedness and the receipt and 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 beginning of such four-quarter period.
(b) Notwithstanding the prohibitions of paragraph (a) of this Section 4.09, the Company may incur of any of the following items of Indebtedness (collectively, “Permitted Debt”):
(i) the incurrence by the Company and any Restricted Subsidiary of Indebtedness under Credit Facilities (including amounts outstanding on the Issue Date); provided that the aggregate principal amount of all outstanding Indebtedness under such Credit Facilities (including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (i)) permitted by this clause (i) does not exceed an amount equal to $570.0 million, less any repayments actually made thereunder with the Net Proceeds of Asset Sales in accordance with clause (b) of the second paragraph of Section 4.07;
(ii) the incurrence by the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.Existing Indebtedness (excluding amounts outstanding under the Credit Agreement at the Issue Date);
(biii) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of incurrence by the Company and its Restricted Subsidiaries on a consolidated basis would be greater the Subsidiary Guarantors of Indebtedness represented by the Notes and the Note Guarantees (other than 45% of Adjusted Total Assets as of any date of Incurrence.Additional Notes);
(civ) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, incurrence by the Company or any of its Restricted Subsidiaries may Incur of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each and case, incurred for the purpose of financing all or any part of the following:
(1) Indebtedness purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof)such Restricted Subsidiary, in an aggregate principal amount at (including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness incurred pursuant to this clause (yiv)) not to exceed $50 million at any time outstanding;
(v) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace, Indebtedness (other than intercompany Indebtedness) that is permitted by this Indenture to be incurred under the first paragraph of this Section 4.09 or clause (i), (ii), (iii), (iv) or (ix) of this paragraph;
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereofSubsidiaries; provided, the aggregate amount of feeshowever, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed tothat:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the obligor on such Indebtedness and such Indebtedness is owed to or held by a Restricted Subsidiary that is not a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in right full in cash of payment all Obligations with respect to the Notes, in the case of the Company, or the Note GuaranteeGuarantee of such Subsidiary Guarantor, in the case of a Subsidiary Guarantor Guarantor; and
(except to the extent prohibited by applicable Gaming Law); and provided further B) (i) any subsequent issuance or transfer of Equity Interests that any event which results in any such Restricted Subsidiary ceasing to be Indebtedness being held by a Restricted Subsidiary or any subsequent transfer of such Indebtedness (Person other than to the Company or a Wholly Owned Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Restricted Subsidiary) 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 (2)(Bvi);
(3vii) the Notes incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of hedging interest rate risk with respect to be issued on the Issue Date;
(4) any Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be is permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness this Indenture to be Refinanced is subordinated to the Notes; andoutstanding;
(Bviii) such new Indebtedness, determined as the guarantee by the Company or any of the date its Restricted Subsidiaries of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Restricted Subsidiary Guarantor of the Company that ranks equally with was permitted to be incurred by another provision of this Section 4.09;
(ix) the incurrence by the Company or subordinate any of its Restricted Subsidiaries of additional Indebtedness in right of payment to the Notes an aggregate principal amount (or such Subsidiary Guarantor’s Note Guaranteeaccrued value, as applicable) at any time outstanding, be Refinanced by means of including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor incurred pursuant to this clause (5ix), not to exceed $75 million;
(x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of judgment, appeal, surety, performance and other like bonds, bankers acceptances and letters of credit provided by the Company and its Subsidiaries in the ordinary course of business (including any Indebtedness incurred to refinance, retire, renew, defease, refund or otherwise replace any Indebtedness referred to in this clause (x));
Appears in 1 contract
Sources: Indenture (Cenveo, Inc)
Incurrence of Indebtedness. (a) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively "incur") any Indebtedness ifIndebtedness, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur issue any Subsidiary Disqualified Stock; provided, however, that the Issuer and its Restricted Subsidiaries may incur Indebtedness (and such Indebtedness may be incurred pursuant to this paragraph without regard, in the case of any particular category of Indebtedness, to any limitation set forth with respect to Indebtedness of such category in any of items (i) through (xvi) set forth below in this Section 4.09) or any Secured Indebtedness issue shares of Disqualified Stock if, immediately :
(i) no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to the Incurrence of such Subsidiary Indebtedness incurrence or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.issuance; and
(cii) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to such incurrence or issuance, the Incurrence Ratio of such Indebtedness and the receipt and application Cash Flow to Fixed Charges of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis Issuer would not be less than 2.0 to 1.0 1.5:1 (calculated on a Pro Forma Basis)pro forma basis to include such Indebtedness and related cash flows as of the end of the most recent fiscal quarter of the Issuer with respect to which financial statements of the Issuer have been furnished to the Trustee pursuant to Section 4.03 hereof.
(d) Notwithstanding clauses (a), (b) and (c) The provisions of the first paragraph of this Section 4.08, 4.09 will not apply to the Company incurrence of any of the following items of Indebtedness (collectively "Permitted Debt"):
(i) the incurrence by the Issuer or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company under one or any of the Subsidiary Guarantors outstanding under more New Credit Facilities Facilities, and the issuance or creation of letters of credit thereunder from time to time, in an aggregate principal or stated amount outstanding at any time not to exceed $60 million;
(ii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Existing Indebtedness;
(iii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness pursuant to the terms and bankers’ acceptances thereunder provisions, or in connection therewith with the implementation, of the Plan;
(with iv) the incurrence by the Issuer of Indebtedness represented by the Notes and the Tranche B Notes;
(v) the incurrence of Non-Recourse Debt by any Operating Company or Investment Vehicle;
(vi) Permitted Sale/Leaseback Transactions;
(vii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Lease Obligations under leases for equipment or other personal property not to exceed $10 million in aggregate principal or stated amount outstanding at any time;
(viii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness;
(ix) Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries in respect of surety bonds, performance or bid bonds or letters of credit issued in the ordinary course of business, including, without limitation, those in respect of workers' compensation claims or self-insurance, in an aggregate amount outstanding at any time not to exceed $25 million;
(x) the incurrence by the Issuer or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Issuer and bankers acceptances being deemed to have a principal amount equal any of its Restricted Subsidiaries (subject to the face amount thereofprovisions of clauses (i) and (ii) of item (a) of the definition of the term "Permitted Investments" herein), provided that such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes;
(xi) the Guaranty by the Issuer or any of its Restricted Subsidiaries of Indebtedness of the Issuer or a Restricted Subsidiary of the Issuer (other than a Guaranty by the Issuer of Indebtedness of an Operating Company or an Investment Vehicle or a Guaranty by a Restricted Subsidiary of Indebtedness of an Operating Company or an Investment Vehicle that is not a member of the same Operating Company Group as the guaranteeing Subsidiary) that was permitted by this Indenture to be incurred;
(xii) Indebtedness of any Restricted Subsidiary of the Issuer existing at the time such Person becomes a Restricted Subsidiary of the Issuer (except for any such Indebtedness incurred in contemplation of or to finance the acquisition of such Subsidiary);
(xiii) Indebtedness under any Swap;
(xiv) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness under short-term overdraft lines of credit or similar arrangements entered into in the ordinary course of business, in each case associated with the Issuer's cash management program;
(xv) the incurrence by Service Companies of Indebtedness in respect of credit card obligations or services incurred in the ordinary course of business; and
(xvi) the incurrence by the Issuer or any of its Restricted Subsidiaries of additional Indebtedness, in an aggregate principal amount (or accreted value, if applicable) at any one time outstanding not to exceed the sum $5 million. For purposes of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences determining compliance with this Section 4.09, if an item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvi) above or is entitled to be incurred pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) first paragraph of this Section 4.08(d)) plus 4.09, the aggregate amount Issuer may, in its sole discretion, classify such item of feesIndebtedness in any manner that complies with this Section 4.09, underwriting discounts, accrued and unpaid such item of Indebtedness will be treated as having been incurred pursuant to one or more of such clauses and/or pursuant to the first paragraph hereof in accordance with such classification. Neither the accrual of interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed nor the amount so Refinanced; provided that Indebtedness, the proceeds accretion of which are used to Refinance Subordinated Indebtednessaccreted value, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness deemed to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as an incurrence of the date Indebtedness for purposes of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);Section 4.09.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, incur, directly or indirectly, any Indebtedness; provided that the Issuer or any Guarantor may incur Indebtedness if, immediately after giving effect to such incurrence, the Consolidated Coverage Ratio is at least 2.0 to 1.0 determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, and the application of proceeds therefrom, had occurred at the beginning of such four-quarter period (this proviso, the “Coverage Ratio Exception”).
(b) Section 4.09(a) will not prohibit incurrence of the following Indebtedness (collectively, “Permitted Indebtedness”):
(1) the Notes issued on the Issue Date and any related Guarantees;
(2) Indebtedness of the Issuer or any Restricted Subsidiary to the extent outstanding on the Issue Date, including the Senior Notes due 2017 (other than Indebtedness under clauses (i) and (ii) of the definition of “Credit Facilities”);
(3) Indebtedness of the Issuer or any Restricted Subsidiary under Credit Facilities in an aggregate amount at any time outstanding pursuant to this clause (3) (including amounts outstanding on the Issue Date) not to exceed the greater of:
(A) $1,500.0 million; and
(B) the sum of (x) $1,100.0 million, (y) 75% of the net book value of the Inventory of the Issuer and the Restricted Subsidiaries and (z) 85% of the net book value of the accounts receivable of the Issuer and the Restricted Subsidiaries, in each case determined on a consolidated basis in accordance with GAAP;
(4) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to the Coverage Ratio Exception, clause (1) of this Section 4.09(b), clause (2) of this Section 4.09(b) (other than any Indebtedness owed to the Issuer or any of its Subsidiaries), this clause (4), or clause (16) of this Section 4.09(b);
(5) Indebtedness owed by the Issuer or any Restricted Subsidiary to the Issuer or a Restricted Subsidiary; provided that
(A) any such Indebtedness owed by the Issuer shall be subordinated by its terms to the prior payment in full in cash of all Obligations with respect to the Notes, and any such Indebtedness owed by any Guarantor (other than to the Issuer or any other Guarantor) shall be subordinated by its terms to the prior payment in full in cash of all Obligations with respect to the Guarantee of such Guarantor; and
(B) if such Indebtedness is held by a Person other than the Issuer or a Restricted Subsidiary, the Issuer or such Restricted Subsidiary shall be deemed to have incurred Indebtedness not permitted by this clause (5);
(6) (x) the guarantee by the Issuer or any Guarantor of Indebtedness of the Issuer or a Guarantor and (y) the guarantee by any Restricted Subsidiary that is not a Guarantor of Indebtedness of any other Restricted Subsidiary that is not a Guarantor; provided that, in each case, the Indebtedness being guaranteed is incurred pursuant to the Coverage Ratio Exception or is Permitted Indebtedness;
(7) Hedging Obligations;
(8) Purchase Money Indebtedness and Capital Lease Obligations of the Issuer or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any assets (including capital expenditures of the Issuer or any Restricted Subsidiary), and Refinancings thereof, in an aggregate amount at any time outstanding pursuant to this clause (8) not to exceed the greater of (x) $75.0 million and (y) 5.0% of Consolidated Net Tangible Assets;
(9) Indebtedness of any Foreign Subsidiary in an aggregate amount not to exceed at any time outstanding pursuant to this clause (9) not to exceed the greater of (x) $75.0 million and (y) 5.0% of Consolidated Net Tangible Assets;
(10) Indebtedness of the Issuer or any of its Restricted Subsidiaries represented by worker’s compensation claims and other statutory or regulatory obligations, self-insurance obligations, tender, bid, performance, government contract, surety or appeal bonds, standby letters of credit and warranty and contractual service obligations of like nature, trade letters of credit or documentary letters of credit, in each case to the extent incurred in the ordinary course of business of the Issuer or such Restricted Subsidiary;
(11) customary indemnification, adjustment of purchase price or similar obligations, in each case, incurred in connection with the acquisition or disposition of any assets of the Issuer or any Restricted Subsidiary (other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such assets for the purpose of financing such acquisition);
(12) obligations in respect of performance bonds and completion, guarantee, surety and similar bonds in the ordinary course of business;
(13) Indebtedness in respect of Treasury Services Agreements (including Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds);
(14) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(15) Indebtedness consisting of take-or-pay obligations contained in supply agreements relating to products, services or commodities of a type that the Issuer or any of its Subsidiaries uses or sells in the ordinary course of business;
(16) Acquired Indebtedness; provided that after giving effect to such acquisition or merger, either
(A) the Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or
(B) the Consolidated Coverage Ratio of the Issuer and the Restricted Subsidiaries is equal to or greater than immediately prior to such acquisition or merger;
(17) Indebtedness consisting of the financing of insurance premiums;
(18) Indebtedness consisting of Guarantees incurred in the ordinary course of business under repurchase agreements or similar agreements in connection with the financing of sales of goods in the ordinary course of business;
(19) additional Indebtedness in an aggregate principal amount not to exceed $75.0 million at any time outstanding pursuant to this clause (19); and
(20) the incurrence of Indebtedness by Unrestricted Subsidiaries.
(c) For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (1) through (20) above or is entitled to be incurred pursuant to the Coverage Ratio Exception, the Issuer shall, in its sole discretion, classify such item of Indebtedness and may divide and classify such Indebtedness in more than one of the types of Indebtedness described and may later reclassify such item into any one or more of the categories of Indebtedness described above (provided that at the time of reclassification it meets the criteria in such category or categories). The maximum amount of Indebtedness that the Issuer or any Restricted Subsidiary may incur pursuant to this covenant will not be deemed to be exceeded solely as the result of fluctuations in the exchange rates of currencies. In determining the amount of Indebtedness outstanding under one of the clauses above, the outstanding principal amount of any particular Indebtedness of any Person shall be counted only once and any obligation of such Person or any other Person arising under any guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness shall be disregarded so long as it is permitted to be incurred by the Person or Persons incurring such obligation.
(d) Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, of the same class will not be deemed to be an incurrence of Indebtedness, Disqualified Stock or Preferred Stock.
(e) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness incurred pursuant to and in compliance with, this Section 4.09, any other obligation of the obligor on such Indebtedness (or of any other Person who could have incurred such Indebtedness under this section) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness.
(f) Notwithstanding the provisions of clauses (a) through (e) of this Section 4.09, the Issuer will not, and will not permit any of its Restricted Subsidiaries other Guarantor to, Incur incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event which results in any such Restricted Subsidiary ceasing purports to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms (or by the terms of any agreement or instrument pursuant to which governing such new Indebtedness is issued or remains outstanding, is expressly made subordinate Indebtedness) subordinated in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may any other Indebtedness of the Company Issuer or a Subsidiary Guarantor that ranks equally with or subordinate of such other Guarantor, as the case may be, unless such Indebtedness is also by its terms made subordinated in right of payment to the Notes or the Guarantee of such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means to at least the same extent as such Indebtedness is subordinated in right of any payment to such other Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);the Issuer or such Guarantor, as the case may be.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Company Issuer will not, and will not permit cause any of its Restricted Subsidiaries not to, Incur incur any Indebtedness, except the following:
(a) Indebtedness ifexisting on the Issue Date (provided that any such Indebtedness that is not intercompany Indebtedness shall be set forth on Schedule 9.2), and (ii) any Permitted Refinancing thereof (other than intercompany Indebtedness refinanced with Indebtedness owed to a person not affiliated with the Issuer or any Subsidiary);
(b) Indebtedness created hereunder and under the other Note Documents;
(i) Indebtedness under the Convertible Note Purchase Agreement in an aggregate principal amount not to exceed $55,000,000 less any amount of such Indebtedness converted into Ordinary Shares in accordance with the terms thereof from time to time; provided, that, on or prior to the date such Indebtedness is incurred, the Collateral Agent shall have received a fully executed copy of each of (A) the First Lien/First Lien Intercreditor Agreement, (B) the Pledge and Security Agreement and (C) a supplement to the Guaranty; and (ii) any Permitted Refinancing thereof;
(i) secured Indebtedness of the Issuer or any Subsidiary secured by assets of the Note Parties not constituting Collateral, so long as immediately after giving effect to the Incurrence incurrence of such Indebtedness and the receipt and application use of the proceeds therefromthereof, the Consolidated Secured Net Leverage Ratio does not exceed 3.00 to 1.00, calculated on a pro forma basis for the then most recently ended Test Period (for the avoidance of doubt, excluding the netting of any cash constituting the proceeds thereof), provided, that, (x) the final maturity date of any such Indebtedness shall be no earlier than the Maturity Date, and (y) the Weighted Average Life to Maturity of any such Indebtedness shall be no shorter than the remaining Weighted Average Life to Maturity of the Notes, and (ii) any Permitted Refinancing thereof;
(i) secured Indebtedness of the Issuer or any Subsidiary secured by the Collateral so long as immediately after giving effect to the incurrence of such Indebtedness and the use of the proceeds thereof, (1) the Pro Farm Leverage Ratio does not exceed 4.00 to 1.00, calculated on a pro forma basis for the then most recently ended Test Period (for the avoidance of doubt, excluding the netting of any cash constituting the proceeds thereof) and (2) the Consolidated Secured Net Leverage Ratio does not exceed 3.00 to 1.00, calculated on a pro forma basis for the then most recently ended Test Period (for the avoidance of doubt, excluding the netting of any cash constituting the proceeds thereof); provided, that, (w) the final maturity date of any such Indebtedness shall be no earlier than the Maturity Date, (x) the Weighted Average Life to Maturity of any such Indebtedness shall be no shorter than the remaining Weighted Average Life to Maturity of the Notes, (y) in the case of such Indebtedness secured by Liens on the Collateral that are (or are intended to be) pari passu with the Liens on the Collateral securing the Obligations, such Liens shall be subject to the First Lien/First Lien Intercreditor Agreement and (z) in the case of such Indebtedness secured by Liens on the Collateral that are (or are intended to be) junior to the Liens on the Collateral securing the Obligations, such Liens shall be subject to the First Lien/Second Lien Intercreditor Agreement;
(f) unsecured Indebtedness of the Issuer or any Note Party so long as immediately after giving effect to the incurrence of such Indebtedness and the use of the proceeds thereof, the Issuer shall be in pro forma compliance with the Financial Covenants, calculated on a pro forma basis for the then most recently ended Test Period (for the avoidance of doubt, excluding the netting of any cash constituting the proceeds thereof);
(g) Indebtedness of Pro Farm and any of its Subsidiaries incurred after the Effective Date consisting of ordinary course working capital facilities in an aggregate principal amount not to exceed $10,000,000; provided that such Indebtedness is subject to an Intercreditor Agreement in form and substance satisfactory to the Collateral Agent and the Majority Holders; and
(h) Indebtedness of Pro Farm and any of its Subsidiaries incurred after the Effective Date consisting of ordinary course working capital facilities in an aggregate principal amount not to exceed $10,000,000; provided, that at the time of incurrence of such Indebtedness, the Pro Farm Working Capital Conditions are satisfied when calculated for the most recently ended Test Period, provided, further that such Indebtedness is subject to an Intercreditor Agreement in form and substance satisfactory to the Collateral Agent and the Majority Holders. Notwithstanding anything to the contrary in this Agreement, (i) on the Issue Date, the aggregate principal amount of all outstanding Indebtedness of secured by the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness Collateral or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a other assets owned by Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company Farm or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding shall not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) 90,000,000 and (bii) above) plus (2) in the case no Subsidiary of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary Pro Farm that is not a Subsidiary Guarantor shall be permitted to incur, or (subject to Section 9.5) guarantee, any Indebtedness pursuant to this clause Sections 9.2(a), (5d);, (e), (f), (g) or (h).
Appears in 1 contract
Sources: Note Purchase Agreement (Bioceres Crop Solutions Corp.)
Incurrence of Indebtedness. (a) The Company will Parent Guarantor shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, Incur any Indebtedness ifother than Indebtedness existing on the Issue Date; provided, immediately after giving effect to however, that the Incurrence of such Indebtedness Parent Guarantor and the receipt and application of the proceeds therefromany Restricted Subsidiary may Incur Indebtedness, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Consolidated Leverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 8.5 to 1.0 (calculated 1 for Indebtedness Incurred on a Pro Forma Basis)or prior to September 30, 2002, 8.0 to 1 for Indebtedness Incurred after September 30, 2002 and on or prior to September 30, 2003, and 7.5 to 1 for Indebtedness Incurred thereafter.
(db) Notwithstanding clauses the provisions of clause (a), (b) and (c) of this Section 4.084.09, the Company or Parent Guarantor and any of its Restricted Subsidiaries Subsidiary (except as specified below) may Incur each and all the following types of the following:Indebtedness (including Acquired Indebtedness):
(1i) additional Indebtedness of the Company under one or more Credit Agreements outstanding at any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), time in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 1,550.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted Incurred under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(Bi);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5ii) Indebtedness issued in exchange for, or the net proceeds of which are used to extendrefinance or refund, refinancethen outstanding Indebtedness, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses Indebtedness Incurred under clause (1i), (2iii), (6iv), (10), v) or (11) and (13vii) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”4.09(b), and any refinancings thereof in an amount not to exceed the amount so Refinanced; provided that Indebtednessrefinanced or refunded (plus premiums, the proceeds of which are used to Refinance Subordinated Indebtednessaccrued interest, will be permitted under this clause (5) accrued dividends, fees and expenses), but only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) if such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature or have a mandatory redemption or repurchase date prior to the final Stated Maturity of the Subordinated Indebtedness to be Refinancedrefinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; refinanced or refunded and provided further, on the condition that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5ii);
(iii) Indebtedness represented by the Notes issued hereunder, the Exchange Notes, including in each case, the Guarantees of the Notes, and the Guarantees of any Additional Notes that may be issued in the such in accordance with this Indenture; PROVIDED, HOWEVER, that if any Additional Notes are issued prior to October 15, 2003, the Company shall deposit in the Interest Reserve Account funds sufficient to pay, when due, all cash interest payments accruing on such Additional Notes on or prior to October 15, 2003;
Appears in 1 contract
Sources: Indenture (Dutchess County Cellular Telephone Co Inc)
Incurrence of Indebtedness. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness if(including Acquired Debt); provided, however, that the Company and any Restricted Subsidiary may incur Indebtedness (including Acquired Debt), if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately after giving effect preceding the date on which such additional Indebtedness is incurred would have been at least 2 to the Incurrence of such Indebtedness and the receipt and 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 beginning of such four-quarter period.
(b) Notwithstanding the prohibitions of paragraph (a) of this Section 4.09, the Company may incur of any of the following items of Indebtedness (collectively, “Permitted Debt”):
(i) the incurrence by the Company and any Restricted Subsidiary of Indebtedness under Credit Facilities (including amounts outstanding on the Issue Date); provided that the aggregate principal amount of all Indebtedness under such Credit Facilities (including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (i)) permitted by this clause (i) does not exceed $570.0 million (after giving effect to all prepayments of amounts outstanding Indebtedness thereunder with the proceeds of the initial issuance of the Notes), less any repayments actually made thereunder with the Net Proceeds of Asset Sales in accordance with clause (b) of the second paragraph of Section 4.07;
(ii) the incurrence by the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.Existing Indebtedness (excluding amounts outstanding under the Credit Agreement at the Issue Date);
(biii) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of incurrence by the Company and its Restricted Subsidiaries on a consolidated basis would be greater the Subsidiary Guarantors of Indebtedness represented by the Notes and the Note Guarantees (other than 45% of Adjusted Total Assets as of any date of Incurrence.Additional Notes);
(civ) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, incurrence by the Company or any of its Restricted Subsidiaries may Incur of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each and case, incurred for the purpose of financing all or any part of the following:
(1) Indebtedness purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof)such Restricted Subsidiary, in an aggregate principal amount at (including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness incurred pursuant to this clause (yiv)) not to exceed $50 million at any time outstanding;
(v) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace, Indebtedness (other than intercompany Indebtedness) that is permitted by this Indenture to be incurred under the first paragraph of this Section 4.09 or clause (i), (ii), (iii), (iv) or (ix) of this paragraph;
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereofSubsidiaries; provided, the aggregate amount of feeshowever, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed tothat:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the obligor on such Indebtedness and such Indebtedness is owed to or held by a Restricted Subsidiary that is not a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in right full in cash of payment all Obligations with respect to the Notes, in the case of the Company, or the Note GuaranteeGuarantee of such Subsidiary Guarantor, in the case of a Subsidiary Guarantor Guarantor; and
(except to the extent prohibited by applicable Gaming Law); and provided further B) (i) any subsequent issuance or transfer of Equity Interests that any event which results in any such Restricted Subsidiary ceasing to be Indebtedness being held by a Restricted Subsidiary or any subsequent transfer of such Indebtedness (Person other than to the Company or a Wholly Owned Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Restricted Subsidiary) 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 (2)(Bvi);
(3vii) the Notes incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of hedging interest rate risk with respect to be issued on the Issue Date;
(4) any Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be is permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness this Indenture to be Refinanced is subordinated to the Notes; andoutstanding;
(Bviii) such new Indebtedness, determined as the guarantee by the Company or any of the date its Restricted Subsidiaries of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Restricted Subsidiary Guarantor of the Company that ranks equally with was permitted to be incurred by another provision of this Section 4.09;
(ix) the incurrence by the Company or subordinate any of its Restricted Subsidiaries of additional Indebtedness in right of payment to the Notes an aggregate principal amount (or such Subsidiary Guarantor’s Note Guaranteeaccrued value, as applicable) at any time outstanding, be Refinanced by means of including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor incurred pursuant to this clause (5ix), not to exceed $75 million;
(x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of judgment, appeal, surety, performance and other like bonds, bankers acceptances and letters of credit provided by the Company and its Subsidiaries in the ordinary course of business (including any similar Indebtedness incurred to refinance, retire, renew, defease, refund or otherwise replace any Indebtedness referred to in this clause (x)); and
(xi) Indebtedness incurred by the Company or any of its Subsidiaries arising from agreements or their respective bylaws providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the performance of the Company or any of its Subsidiaries to any Person acquiring all or a portion of the business or assets of a Subsidiary of the Company.
(c) For purposes of determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in paragraphs (b)(i) through (b)(xi) above, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.09, the Company shall be permitted to classify (or later reclassify in whole or in part in its sole discretion) such item of Indebtedness in any manner that complies with this Section 4.09 and such Indebtedness will be treated as having been incurred pursuant to such clauses or the first paragraph hereof, as the case may be, as designated by the Company; provided, however, that any incurrences of Indebtedness under the Credit Facilities must be first applied to clause (i) above. Accrual of interest or dividends, the accretion of accreted value or liquidation preference and the payment of interest or dividends in the form of additional Indebtedness or Disqualified Stock shall not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09.
Appears in 1 contract
Sources: Indenture (Cenveo, Inc)
Incurrence of Indebtedness. The SPV Parties shall not, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable for, contingently or otherwise, any Indebtedness other than the following (and Alaska shall not, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to any Indebtedness with respect to any Pre-paid Miles Purchase other than as set forth in clause (b) below):
(a) The Company will notJunior Lien Debt; provided that (i) no Event of Default or Early Amortization Event shall have occurred and be continuing or would result from the issuance of such Junior Lien Debt, (ii) the pro forma Debt Service Coverage Ratio (Senior Debt and will not permit Junior Debt) (calculated using the Semi-Annual Debt Service (Senior Debt and Junior Debt) of any other outstanding Indebtedness previously incurred pursuant to this clause (1) and such Junior Lien Debt) as of its Restricted Subsidiaries to, Incur any Indebtedness ifthe immediately preceding Determination Date, immediately after giving effect to the Incurrence issuance of such Indebtedness Junior Lien Debt shall be at least 1.00 to 1.00, (iii) the pro forma LTV Ratio (Senior Debt and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 65% of Adjusted Total Assets as of any date of Incurrence.
(bJunior Debt) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence issuance or incurrence of such Junior Lien Debt shall not exceed 62.5% (provided that such pro forma LTV Ratio shall be calculated based on an Appraisal delivered by Alaska dated no earlier than three (3) calendar months prior to the proposed date of issuance or incurrence of such Junior Lien Debt) and (iv) such Junior Lien Debt shall not be incurred by or subject to a guarantee by any Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefromAlaska other than any SPV Party;
(b) Pre-paid Miles Purchases, so long as (i) the aggregate principal amount of all outstanding Subsidiary Miles purchased in Pre-paid Miles Purchases or other Indebtedness incurred with respect to Pre-paid Miles Purchases does not exceed an amount equal to the quotient of (x) $550,000,000 divided by (y) the rate per Mile by which such Person purchases Miles from Alaska as in effect on the Closing Date, (ii) such sale is non-refundable and Secured non-recourse to the SPV Parties, (iii) the Indebtedness related thereto is unsecured or secured by assets of Alaska or its subsidiaries (other than the Company SPV Parties) that do not constitute Collateral and its Restricted Subsidiaries on a consolidated basis (iv) no Early Amortization Period or Event of Default is continuing at the time of such sale or would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.result therefrom;
(c) The Company will notIndebtedness represented by (1) the Notes issued and outstanding as of the Closing Date, and will not permit the Note Guarantees related thereto, (2) the Term Loans outstanding on the Closing Date, and the related Guarantees by the Guarantors thereof, and (3) additional Indebtedness incurred under the Credit Agreement, the Indenture or another indenture or loan or credit agreement; provided that (i) any such Indebtedness (other than with respect to Section 4.23(c)(A) and (B), customary bridge loans which, subject only to customary conditions (which shall be limited to no payment or bankruptcy event of its Restricted Subsidiaries todefault) would either automatically be converted into or required to be exchanged for long-term refinancing in the form of debt securities issued under an indenture or incremental term loans under the Credit Agreement or another term loan agreement, Incur any Indebtedness ifas applicable, after giving effect permitted under (and subject to the Incurrence requirements of) the other provisions of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basisthis Section 4.23(c).
(d) Notwithstanding clauses (a), (bA) shall have a maturity date not earlier than the 102 Latest Maturity Date then in effect, (B) shall have a Weighted Average Life to Maturity thereof no shorter than the remaining Weighted Average Life to Maturity of the Notes outstanding (in the case of additional Notes to be issued under this Indenture or debt securities to be issued under any other indenture) or the Credit Agreement (in the case of Indebtedness to be incurred under the Credit Agreement or to be incurred under any other term loan agreement), and (cC) of this Section 4.08shall not be subject to or benefit from any Guarantee by any Person other than the Issuer or a Guarantor, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:
(1ii) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith [reserved], (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof)iii) [reserved], in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2iv) in the case of any refinancing of any additional Indebtedness permitted under this clause (1Section 4.23(c) or any portion thereof, after the aggregate amount initial issuance of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Companyterms and conditions governing such Indebtedness shall be substantially similar to, or (taken as a whole) no more favorable (as reasonably determined by Loyalty Co) to the Note Guarantee, in investors or holders providing such Indebtedness than those applicable to the case of a Subsidiary Guarantor Notes under this Indenture (except to the extent prohibited by such terms are (I) conformed (or added) in the Notes Documents for the benefit of the Holders of the Notes pursuant to a supplemental indenture, (II) applicable Gaming Lawsolely to periods after the latest final maturity date of the Notes existing at the time of such incurrence or (III) consist of pricing, fees, rate floors, premiums, optional prepayment or redemption terms); and provided further that notwithstanding the foregoing, in no event shall such Indebtedness be subject to events of default resulting (either directly or through a cross-default or cross-acceleration provision) from the occurrence of any event which results described in the definition of “Alaska Bankruptcy Event” (or the occurrence of any such Restricted event with respect to any Subsidiary ceasing to of Alaska other than any SPV Party) except on the same terms as the Notes, (v) no Event of Default or Early Amortization Event shall have occurred and be a Restricted Subsidiary continuing or any subsequent transfer would result from the issuance of such Indebtedness and (vi) other than in the case of Indebtedness incurred on the Closing Date, the pro forma LTV Ratio (Senior Debt) immediately after giving effect to the Company issuance or any other Restricted Subsidiaryincurrence of such Indebtedness shall not be more than 55.0% (provided that such pro forma LTV Ratio (Senior Debt) shall be deemed, in each case, calculated based on an Appraisal delivered by Alaska dated no earlier than three (3) calendar months prior to constitute an Incurrence the proposed date of issuance or incurrence of such Indebtedness not permitted by this clause (2)(BIndebtedness);
(3a) Indebtedness arising from customary indemnification or other similar obligations under the Notes to be issued Documents and the other agreements entered into on the Issue Date;
Closing Date in connection therewith (4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of replacements or amendments thereto which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the NotesIndenture); and
(Bb) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);otherwise permitted under Section 4.25.
Appears in 1 contract
Sources: Indenture (Alaska Air Group, Inc.)
Incurrence of Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, Incur, directly or indirectly, any Indebtedness; provided, however, that the Company and any Restricted Subsidiary may Incur any Indebtedness if, immediately if on the date of such Incurrence and after giving effect to thereto the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis Leverage Ratio would be greater than 65% of Adjusted Total Assets as of any date of Incurrencenot exceed 5.5:1.0.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to Notwithstanding the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 45% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis).
(d) Notwithstanding clauses foregoing paragraph (a), (b) and (c) of this Section 4.08, the Company or and any of its Restricted Subsidiaries Subsidiary may Incur each and all of the followingfollowing Indebtedness:
(1) Bank Indebtedness of (including without limitation any Bank Indebtedness Incurred under the Company or Bridge Facility and any of the Subsidiary Guarantors outstanding under Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), Tranche C Loan) in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancingexceeding £5,300,000,000;
(2) Indebtedness of the Company owed to:
(A) The Company to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary Guarantor evidenced owed to and held by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligorRestricted Subsidiary; provided, the Indebtedness is subordinated in right however, that (A) any subsequent issuance or transfer of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary Capital Stock or any subsequent transfer of such Indebtedness or any other event that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary shall be deemed to constitute the Incurrence of such Indebtedness by the obligor thereon, (B) if an Intermediate Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly subordinated for the benefit of the Holders to the prior payment in full in cash of all obligations with respect to the relevant Intermediate Guarantee and (C) if the Issuer is the obligor on such Indebtedness, such Indebtedness is expressly subordinated for the benefit of the Holders to the prior payment in full in cash of all obligations with respect to the Notes;
(3) Indebtedness (A) represented by the Notes (not including any Additional Notes), (B) represented by the Intermediate Guarantees and the Senior Subordinated Subsidiary Guarantee, and (C) outstanding on the Closing Date (other than the Indebtedness described in clause (2) of this paragraph (b));
(4) Indebtedness consisting of Refinancing Indebtedness Incurred in respect of any Indebtedness described in clauses (3) or (4) of this paragraph (b) or under paragraph (a);
(5) Indebtedness of a Restricted Subsidiary acquired by the Company, the Issuer or any other Restricted Subsidiary after the Closing Date Incurred and outstanding on or prior to the Company date on which such Restricted Subsidiary was acquired by the Company, the Issuer or any other Restricted Subsidiary (other than Indebtedness Incurred in contemplation of, in connection with, as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Subsidiary of or was otherwise acquired by the Company, the Issuer or any other Restricted Subsidiary) shall be deemedor any Refinancing Indebtedness in respect thereof, not exceeding £75 million in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B)the aggregate at any one time outstanding;
(3) the Notes to be issued on the Issue Date;
(46) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtednessin respect of performance, by its terms bid, completion, surety or appeal bonds provided by the terms Company, the Issuer and any other Restricted Subsidiary in the ordinary course of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
their business and (B) such new Indebtedness, determined as under Interest Rate Agreements and Currency Agreements entered into for bona fide hedging purposes of the date of Incurrence of such new IndebtednessCompany, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, Issuer and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any other Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5)in the ordinary course of business;
Appears in 1 contract
Sources: Indenture (NTL:Telewest LLC)
Incurrence of Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 6560% of Adjusted Total Assets as of any date of Incurrence.
(b) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Indebtedness and Secured Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis would be greater than 4540% of Adjusted Total Assets as of any date of Incurrence.
(c) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 to 1.0 (calculated on a Pro Forma Basis)1.0.
(d) Notwithstanding clauses paragraphs (a), (b) and (c) of this Section 4.08above, the Company or any of its Restricted Subsidiaries may Incur each and all of the following:following (“Permitted Debt”):
(1) Indebtedness of the Company or any of the Subsidiary Guarantors outstanding under the Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) $3,400.0 million plus (y) the aggregate principal amount of any outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing325.0 million;
(2) Indebtedness owed to:
(A) The Company or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law); and provided further that any event 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 any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date;
(4) Indebtedness outstanding as of the Issue Date;
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund other outstanding Indebtedness (other than clauses (1), (2), (6), (10), (11) and (13) of this Section 4.08(d)) plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Subordinated Indebtedness to be Refinanced, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Subordinated Indebtedness to be Refinanced; and provided further, that in no event may Indebtedness of the Company or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);
Appears in 1 contract
Sources: Indenture (CyrusOne Inc.)
Incurrence of Indebtedness. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount ratio of all outstanding consolidated Indebtedness of the Company Issuer and its the Restricted Subsidiaries on a consolidated basis would be greater than 65% of to Adjusted Total Assets as of any date of Incurrencewould exceed 0.65 to 1.00.
(b) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Indebtedness or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such Subsidiary Indebtedness or Secured Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the aggregate principal amount ratio of all outstanding Subsidiary Indebtedness and consolidated Secured Indebtedness of the Company Issuer and its the Restricted Subsidiaries on a consolidated basis would be greater than 45% of to Adjusted Total Assets as of any date of Incurrencewould exceed 0.45 to 1.00.
(c) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefromIndebtedness, on a Pro Forma Basis, the Interest Fixed Charge Coverage Ratio of the Company Issuer and its Restricted Subsidiaries on a consolidated basis would be less than 2.0 2.00 to 1.0 1.0; provided that for so long as any Subsidiary of the Issuer Guarantees the Notes, the amount of additional Indebtedness that may be Incurred from and after the Issue Date by Restricted Subsidiaries that are not Subsidiary Guarantors under this clause (calculated on a Pro Forma Basis)c) shall not exceed the greater of $295.0 million and an amount equal to 7.5% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding.
(d) Notwithstanding clauses (a), (b) and (c) of this Section 4.08, the Company Issuer or any of its Restricted Subsidiaries may Incur each and all of the following:
(1) Indebtedness of the Company Issuer or any of the Subsidiary Guarantors outstanding under the Credit Facilities and the issuance or creation of letters of credit and bankers’ acceptances thereunder or in connection therewith (with letters of credit and bankers acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) (x) the greater of $3,400.0 1,380.0 million plus (y) the aggregate principal and an amount equal to 35.0% of Adjusted Total Assets at any time outstanding Incremental Term Loans (provided that after giving pro forma effect to any such incurrences of Indebtedness pursuant to this clause (y), the Company and its Restricted Subsidiaries are in compliance with paragraphs (a) and (b) above) plus (2) in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) Indebtedness owed to:
(A) The Company the Issuer or a Subsidiary Guarantor evidenced by an unsubordinated promissory note; or
(B) any other Restricted Subsidiary; provided that if the Company Issuer or any Subsidiary Guarantor is an obligor, the Indebtedness is subordinated in right of payment to the Notes, in the case of the CompanyIssuer, or the Note Guarantee, in the case of a Subsidiary Guarantor (except to the extent prohibited by applicable Gaming Law)Guarantor; and provided further provided, further, that any event 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 Issuer or any other Restricted Subsidiary) shall will be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (2)(B);
(3) the Notes to be issued on the Issue Date[reserved];
(4) Indebtedness under the Notes and the Note Guarantees issued on the Issue Date and Indebtedness outstanding as of the Issue DateDate (including the Existing 2025 Notes and the Existing 2029 Notes but excluding Indebtedness described in clause (1) above);
(5) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund refund, other outstanding Indebtedness that was incurred under the provisions of paragraph (other than clauses (1a), (2b) or (c) of this Section 4.08 or clause (4), (65), (8), (9), (10), (1114), (17), (18), (24), (25) and or (1327) of this Section 4.08(d)) , in an amount not to exceed the amount so Refinanced plus the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums premiums, customary reserves required to be funded and maintained in connection with such Indebtedness and other costs and expenses Incurred in connection with such refinancing (any such action, to “Refinance” or a “Refinancing”), in an amount not to exceed the amount so Refinanced; provided that Indebtedness, the proceeds of which are used to Refinance Subordinated Indebtedness, Indebtedness will be permitted under this clause (5) only if:
(A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be Refinanced is subordinated to the Notes, if applicable; and
(B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the earlier of (i) the Stated Maturity of the Subordinated Indebtedness to be Refinanced, or (ii) the date that is 91 days after the Stated Maturity of the Notes, and the Average Life of such new Indebtedness is at least equal to the earlier of (1) the remaining Average Life of the Subordinated Indebtedness to be Refinanced, or (2) 91 days more than the Average Life of the Notes; and provided provided, further, that in no event may Indebtedness of the Company Issuer or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee, as applicable, be Refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (5);
(6) (i) obligations (contingent or otherwise) existing or arising under any Hedging Obligations or Swap Contracts (including Hedge Agreements) entered into for the purpose of mitigating risks associated with fluctuations in interest rates (including both fixed to floating and floating to fixed contracts), foreign exchange rates or commodity price fluctuations in a non-speculative manner and (ii) Indebtedness consisting of any Permitted Bond Hedge Transaction or any Permitted Warrant Transaction;
(7) Indebtedness under Secured Cash Management Agreements, cash pooling agreements with hotel management companies and in respect of netting services, any Overdraft Line and otherwise in connection with deposit accounts, commercial credit cards, stored value cards, purchasing cards and treasury management services, including any obligations pursuant to Cash Management Agreements, and other netting services, overdraft protections, automated clearing-house arrangements, employee credit card programs, controlled disbursement, ACH transactions, return items, interstate depository network service, Society for Worldwide Interbank Financial Telecommunication transfers, cash pooling and operational foreign exchange management, and in each case, similar arrangements and otherwise in connection with cash management, including cash management arrangements among the Issuer and its Subsidiaries;
(8) (A) Finance Leases, synthetic lease obligations, purchase money obligations or mortgage financings Incurred after the Issue Date and (B) Indebtedness secured by purchase money Liens, in an aggregate outstanding principal amount for clauses (A) and (B) on a combined basis Incurred from and after the Issue Date not to exceed the greater of $395.0 million and an amount equal to 10.0% of Adjusted Total Assets at any time outstanding; provided, however, that, subject to Section 4.08(g), any Refinancing Incurred under clause (5) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (8) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (8);
(9) Indebtedness of the Issuer, to the extent the net proceeds therefrom are promptly:
(A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change of Control Triggering Event; or
(B) deposited to defease or discharge the Notes pursuant to Articles 8 and 11 hereof;
(10) Indebtedness incurred in connection with any Sale and Leaseback Transaction;
(11) customer deposits and advance payments received from customers in the ordinary course of business;
(12) any Guarantee issued by the Issuer pursuant to the matters described in any indemnity agreements entered into for the benefit of a title company that has been engaged by the Issuer or any of its Restricted Subsidiaries;
(13) Guarantees by the Issuer or any Restricted Subsidiary of any Indebtedness of the Issuer or any Restricted Subsidiary; provided that such Indebtedness was permitted to be Incurred pursuant to this Section 4.08 other than under this clause (13); provided, further, that any such Guarantees by the Issuer or any Subsidiary Guarantor of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor is subordinated in right of payment to the obligations of the Issuer and the Subsidiary Guarantors under the Notes;
(14) Guarantees issued by the Issuer or any of its Restricted Subsidiaries of any Indebtedness of Joint Ventures or Unrestricted Subsidiaries Incurred from and after the Issue Date in an amount not to exceed the greater of $100.0 million and 2.5% of Adjusted Total Assets at any time outstanding, if both before and after giving effect to the incurrence of each such Guarantee, no Default or Event of Default has occurred or is continuing; provided, however, that, subject to Section 4.08(g), any Refinancing Incurred under clause (5) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (14) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (14);
(15) Indebtedness of the Issuer or any of its Restricted Subsidiaries supported by a letter of credit issued under any Credit Facilities in an aggregate principal amount not to exceed the stated amount of such letter of credit (but which stated amount may include the amount of any anticipated premiums, expenses (including upfront fees and original issue discount) and any accretion in the principal amount thereof);
(16) contractual indemnity obligations entered into by the Issuer or any of its Restricted Subsidiaries in the ordinary course of ownership or operation of their respective Properties;
(17) Indebtedness (A) of a Person outstanding on the date of any acquisition of such Person, including through the acquisition of a Person that becomes a Restricted Subsidiary or is acquired by, or merged or consolidated with or into, the Issuer or any Restricted Subsidiary, or that is assumed by the Issuer or any Restricted Subsidiary in connection with any such acquisition (other than Indebtedness incurred by such Person in connection with, or contemplation of, such acquisition, merger or consolidation), (B) Incurred to provide all or any portion of the funds utilized to acquire, or to consummate the transaction or series of related transactions in connection with or in contemplation of any acquisition of, a Person that becomes a Restricted Subsidiary, (C) assumed in connection with an asset acquisition by the Issuer or a Restricted Subsidiary or (D) Incurred in connection with any Investment in a third party permitted under this Indenture, in each case under this clause (17), as long as immediately after giving effect thereto, either (i) the Fixed Charge Coverage Ratio on a Pro Forma Basis would be at least 2.00 to 1.0 or (ii) the Fixed Charge Coverage Ratio on a Pro Forma Basis would be greater than or equal to the actual Fixed Charge Coverage Ratio immediately prior to such acquisition, incurrence or assumption, in each case under this clause (17), with the Fixed Charge Coverage Ratio calculated in accordance with Section 4.08(c);
(18) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, together with any other Indebtedness Incurred from and after the Issue Date pursuant to this clause (18) or Section 4.08(c) by such Restricted Subsidiaries, in an amount not to exceed the greater of $395.0 million and an amount equal to 10.0% of Adjusted Total Assets in the aggregate for all such Restricted Subsidiaries at any time outstanding; provided, however, that, subject to Section 4.08(g), any Refinancing Incurred under clause (5) above in respect of such Indebtedness shall be deemed to have been incurred under this clause (18) for purposes of determining the amount of Indebtedness that may at any time be Incurred under this clause (18);
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