Incurrence of Indebtedness. (a) The Borrower will not, directly or indirectly, create, incur, assume, permit, suffer to exist or otherwise be or become liable with respect to, contingently or otherwise (collectively, “incur”) any Replacement Debt unless the Borrower shall have demonstrated, by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Replacement Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes of this clause (i) the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume, if such Replacement Debt is incurred prior to the Project Completion Date, that all Senior Secured Debt Commitments will be fully drawn, a Specified Rating Reaffirmation shall have occurred, the weighted average life to maturity of the Replacement Debt shall be longer than the weighted average life to maturity of the Senior Secured Debt being replaced, and the final maturity date of the Replacement Debt shall occur after the maturity date of the Senior Secured Debt being replaced. (b) The Borrower will not incur any Supplemental Debt (other than Funding Shortfall Debt which shall be governed by Section 7.3(d) below) in an amount greater than $250,000,000 unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Supplemental Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes of this clause (i), the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume that all commitments for Supplemental Debt will be fully drawn as of the date on which such Supplemental Debt is incurred and Kroll reaffirms that the rating of the Senior Loans will not, as a result of the incurrence of such Supplemental Debt, be lower than the lower of (A) BBB and (B) the rating of the Senior Loans by Kroll immediately prior to such incurrence of such Supplemental Debt. (c) The Borrower will not incur any Relevering Debt unless prior to the Project Completion Date, (A) such Relevering Debt is Reinstatement Debt or (B) (1) the incurrence of such Relevering Debt would not cause the Debt to Equity Ratio to exceed 75:25 and (2) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), the Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRS, and following the Project Completion Date, (A) the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Relevering Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00 and (B) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), the Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRS. (d) The Borrower will not incur any Funding Shortfall Debt unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Funding Shortfall Debt) the Credit Agreement Projected DSCR commencing on Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes of this clause (i), the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume, if such Funding Shortfall Debt is incurred prior to the Project Completion Date, that all commitments for Funding Shortfall Debt will be fully drawn as of the date on which such Funding Shortfall Debt is incurred and Kroll reaffirms that the rating of the Senior Loans will not, as a result of the incurrence of such Funding Shortfall Debt, be lower than the lower of (A) BBB and (B) the rating of the Senior Loans by Kroll immediately prior to such incurrence of such Supplemental Debt. (e) The Borrower will not incur any Working Capital Debt unless each of the following conditions is satisfied: (i) the aggregate principal amount of Working Capital Debt (including the then‑outstanding funded and unfunded commitments in respect of the CD Revolving Loans) may not at any time exceed $3,000,000,000; and (ii) The condition set forth in Section 2.3(c)(ii) (Working Capital Debt) of the Common Terms Agreement has been satisfied.
Appears in 1 contract
Sources: Credit Agreement (NextDecade Corp.)
Incurrence of Indebtedness. (a) The Borrower will not, directly or indirectly, create, incur, assume, permit, suffer to exist or otherwise be or become liable with respect to, contingently or otherwise (collectively, “incur”) any Replacement Debt unless (i) the Borrower shall have demonstrated, by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Replacement Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes of this clause (i) the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume, if such Replacement Debt is incurred prior to the Project Completion Date, that all Senior Secured Debt Commitments will be fully drawn, a Specified Rating Reaffirmation shall have occurred, (ii) the weighted average life to maturity of the Replacement Debt shall be longer than the weighted average life to maturity of the Senior Secured Debt being replaced, and (iii) the final maturity date of the Replacement Debt shall occur after the maturity date of the Senior Secured Debt being replaced.
(b) The Borrower will not incur any Supplemental Debt (other than Funding Shortfall Debt which shall be governed by Section 7.3(d) below) in an amount greater than $250,000,000 unless (i) the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Supplemental Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes of this clause (i(i), the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume that all commitments for Supplemental Debt will be fully drawn as of the date on which such Supplemental Debt is incurred and Kroll (ii) any Specified Rating Agency reaffirms that the rating of the Senior Loans will not, as a result of the incurrence of such Supplemental Debt, be lower than the lower of (A) BBB the Required Rating and (B) the rating of the Senior Loans by Kroll any Specified Rating Agency immediately prior to such incurrence of such Supplemental Debt.
(c) The Borrower will not incur any Relevering Debt unless (i) prior to the Project Completion Date, (A) such Relevering Debt is Reinstatement Debt or (B) (1) the incurrence of such Relevering Debt would not cause the Debt to Equity Ratio to exceed 75:25 and (2) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), the Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS Specified Rating Agency and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRSthe Required Rating, and (ii) following the Project Completion Date, (A) the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Relevering Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00 and (B) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), the Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS Specified Rating Agency and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRSthe Required Rating.
(d) The Borrower will not incur any Funding Shortfall Debt unless (i) the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Funding Shortfall Debt) the Credit Agreement Projected DSCR commencing on Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes of this clause (i), the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume, if such Funding Shortfall Debt is incurred prior to the Project Completion Date, that all commitments for Funding Shortfall Debt will be fully drawn as of the date on which such Funding Shortfall Debt is incurred and Kroll any Specified Rating Agency reaffirms that the rating of the Senior Loans will not, as a result of the incurrence of such Funding Shortfall Debt, be lower than the lower of (A) BBB the Required Rating and (B) the rating of the Senior Loans by Kroll any Specified Rating Agency immediately prior to such incurrence of such Supplemental Funding Shortfall Debt.
(e) The Borrower will not incur any Working Capital Debt unless each of the following conditions is satisfied:
(i) the aggregate principal amount of Working Capital Debt (including the then‑outstanding then-outstanding funded and unfunded commitments in respect of the CD Revolving Loans) may not at any time exceed $3,000,000,000; and
(ii) The condition set forth in Section 2.3(c)(ii) (Working Capital Debt) of the Common Terms Agreement has been satisfied.
Appears in 1 contract
Sources: Credit Agreement (NextDecade Corp.)
Incurrence of Indebtedness. (a) The Borrower Company will not, and will not permit any of the Guarantors to, directly or indirectly, createincur Indebtedness that will constitute First Lien Debt, incur, assume, permit, suffer to exist or otherwise be or become liable with respect to, contingently or otherwise (collectively, “incur”) any Replacement Debt unless the Borrower shall have demonstrated, by delivery of an updated Base Case Forecast that CNTA Ratio (after taking into account giving pro forma effect to any such incurrence and the incurrence of such Replacement Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as application of the end of each Fiscal Quarternet proceeds thereof) through the Notional Amortization Period shall not be less is equal to or greater than 1.40:1.00; provided, that for purposes of this clause (i) the Credit Agreement Projected CFADS used 1.66 to calculate the Credit Agreement Projected DSCR shall assume, if such Replacement Debt is incurred prior to the Project Completion Date, that all Senior Secured Debt Commitments will be fully drawn, a Specified Rating Reaffirmation shall have occurred, the weighted average life to maturity of the Replacement Debt shall be longer than the weighted average life to maturity of the Senior Secured Debt being replaced, and the final maturity date of the Replacement Debt shall occur after the maturity date of the Senior Secured Debt being replaced1.00.
(b) The Borrower will not incur any Supplemental Debt (other than Funding Shortfall Debt which shall be governed by Section 7.3(d) below) in an amount greater than $250,000,000 unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Supplemental Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for For purposes of this clause (i)Section 4.07, the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume that all commitments for Supplemental aggregate amount of First Lien Debt outstanding as of any date of determination will be fully calculated as the sum of, without duplication:
(1) the aggregate outstanding principal amount of all Indebtedness (or, 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 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 the date on which such Supplemental Debt is incurred and Kroll reaffirms that the rating of the Senior Loans will notdate, as a result of the incurrence of such Supplemental Debt, be lower than the lower of plus
(A) BBB and (B4) the rating aggregate outstanding principal amount of any First Lien Debt (or, if such Indebtedness is issued with original issue discount, the Senior Loans by Kroll immediately prior to such incurrence then accreted value thereof) outstanding consisting of such Supplemental Debtnotes, bonds, debentures, credit agreements (including any Eligible Commodity Hedge Financing) or similar instruments or agreements.
(c) The Borrower Section 4.07(a) hereof will not incur apply to:
(1) any Relevering Specified Cash Management and Swap Obligations, other Cash Management Obligations that would constitute First Lien Debt unless prior to the Project Completion Date, and any First Lien Hedging Obligations;
(2) (A) such Relevering Indebtedness under the Credit Agreement and Term Loan Agreements outstanding on the date of this Indenture, plus (B) the 2022 Notes, plus (C) the 2023 Notes, plus (D) the 2024 Notes, plus (E) 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 May 2016 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 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 is Reinstatement 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 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 (1i) the incurrence of such Relevering Debt would not cause the Debt to Equity Ratio to exceed 75:25 and (2) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), the Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRS, and following the Project Completion Date, (A) the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Relevering Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (in existence as of the end 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 each Fiscal Quarterthe amount of First Lien Debt outstanding pursuant to Section 4.07(b) through the Notional Amortization Period shall not be less than 1.40:1.00 and (B) upon the 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 Relevering Debt letters of credit, similar obligations and commitments;
(other than Reinstatement Debt)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 Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Krolllenders thereunder (or their representatives on their behalf) become a party to, or DBRS consent or agree to be bound by the terms and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇conditions, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRSof the Collateral Agency and Intercreditor Agreement.
(d) The Borrower will 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 Funding Shortfall Debt unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Funding Shortfall Debt) the Credit Agreement Projected DSCR commencing on Initial Principal Payment Date First Lien Hedging Obligations and for each rolling four Fiscal Quarter period (as any extension, renewal or refinancing of the end of each Fiscal QuarterEligible Commodity Hedge Financings existing on the 2017 Notes Issue Date) through the Notional Amortization Period shall not be less than 1.40:1.00; providedpursuant to Section 4.07(a) hereof, that for purposes of this clause (i2) any Permitted Refinancing Indebtedness 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 Credit Agreement Projected CFADS used to calculate foregoing, in each case that will constitute First Lien Debt unless:
(1) The Company and the Credit Agreement Projected DSCR Guarantors shall assumeenter into, if such Funding Shortfall Debt is incurred prior and deliver to the Project Completion DateCollateral Agent, that all commitments for Funding Shortfall Debt will be fully drawn as in the sole discretion of the date on which such Funding Shortfall Debt is incurred and Kroll reaffirms that 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 rating Collateral Agent and, as applicable, consistent with the mortgage modifications delivered in connection with the issuance of the Senior Loans Notes;
(2) The Company or the applicable Guarantor will notcause 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 a result applicable, consistent with the local counsel opinions delivered in connection with the issuance of the incurrence of such Funding Shortfall Debt, be lower than Notes;
(3) The Company or the lower of (A) BBB and (B) applicable Guarantor will cause a title company approved by the rating Collateral Agent to have delivered to the Collateral Agent an endorsement to each title insurance policy then in effect for the benefit of the Senior Loans by Kroll immediately prior Secured Parties, date down(s) or other evidence reasonably satisfactory to the Collateral Agent (which may include a new title insurance policy) (each such incurrence of such Supplemental Debt.
(e) The Borrower will not incur any Working Capital Debt unless delivery, a “Title Datedown Product”), in each of the following conditions is satisfied:
case insuring that (i) the aggregate principal amount of Working Capital Debt (including the then‑outstanding funded and unfunded commitments in respect priority of the CD Revolving LoansLien 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 (and not in connection with) such additional Indebtedness, there has been no change in the condition of title and (iii) there are no intervening liens or encumbrances which may not at any time exceed $3,000,000,000then or thereafter take priority over the Lien of the applicable mortgage(s), in each case other than with respect to Permitted Liens; and
(ii4) The condition set forth in Section 2.3(c)(ii) (Working Capital Debt) Company or the applicable Guarantor will, upon the request of the Common Terms Agreement has been satisfiedCollateral Agent, deliver to the 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 Lien of the mortgages as security for the Notes.
Appears in 1 contract
Sources: Indenture (Calpine Corp)
Incurrence of Indebtedness. (a) The Borrower will notNone of the Guarantors shall, and the Company shall cause the Guarantors not to, directly or indirectly, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be become directly or become indirectly liable with respect to, contingently or otherwise to (collectively, “incur”) any Replacement Debt unless the Borrower shall have demonstrated, by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Replacement Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00Indebtedness; provided, however, that for purposes notwithstanding the foregoing, any Guarantor may incur, so long as no Default or Event of this clause Default has occurred and is continuing:
(1) Indebtedness represented by (i) the Credit Agreement Projected CFADS used EchoStar New Notes issued on the Issue Date, the Notes Guarantees thereof, the EchoStar New Notes Indenture and the Security Documents, (ii) the New Senior Spectrum Secured Exchange Notes and the New Senior Spectrum Secured Convertible Notes, in each case, issued on the Issue Date; (iii) the New Senior Spectrum Secured Convertible Notes issued as PIK Notes (as defined in the New Senior Spectrum Secured Convertible Notes Indenture), (iv) the New Senior Spectrum Secured Exchange Notes issued as PIK Notes (as defined in the New Senior Spectrum Secured Exchange Notes Indenture) and, in each case, related guarantees;
(2) First Lien Indebtedness (other than the EchoStar New Notes, New Senior Spectrum Secured Convertible Notes and New Senior Spectrum Secured Exchange Notes issued on the Issue Date); provided that (a)(w) immediately after giving effect to calculate such First Lien Indebtedness, the Credit Agreement Projected DSCR First Lien LTV Ratio shall assumenot be greater than 0.375 to 1.00, if such Replacement (x) the aggregate amount of First Lien Indebtedness that may be incurred pursuant to this clause (2) after the Issue Date shall not exceed the Spectrum Value Debt is Cap, (y) First Lien Indebtedness incurred under this clause (2) cannot be incurred prior to the Project Completion Datecompletion 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 New Notes, that all New Senior Spectrum Secured Debt Commitments will be fully drawnConvertible Notes or the New Senior Spectrum Secured Exchange Notes, a Specified Rating Reaffirmation issued under the EchoStar New Notes Indenture, the New Senior Spectrum Secured Convertible Notes Indenture and the New Senior Spectrum Secured Exchange Notes Indenture, respectively, the Authorized Representative for such First Lien Indebtedness shall have occurredentered into the First Lien Intercreditor Agreement as a First Lien Representative;
(3) Indebtedness; provided that (a) immediately after giving effect to such Indebtedness, the weighted average life LTV Ratio shall not be greater than 0.60 to maturity 1.00, (b) Indebtedness incurred under this clause (3) cannot be incurred prior to the completion of the Replacement Debt shall Initial Appraisal pursuant to Section 4.18; (c) Indebtedness incurred under this clause (3) cannot be longer guaranteed by any Subsidiary that is not a Guarantor or secured by any assets other than the weighted average life to maturity of the Senior Secured Debt being replaced, and the final Collateral; (d) Indebtedness incurred under this clause (3) cannot have a maturity date earlier than one year following the occurrence of the Replacement Debt shall occur after the maturity date of the Senior Secured Debt EchoStar New Notes; (e) the terms of any Indebtedness incurred under this clause (3) cannot provide for any scheduled repayment, mandatory repayment or redemption (other than in connection with a change of control offer) so long as any EchoStar New Notes remain outstanding; (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 New 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 replacedunderstood 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 Borrower will not incur For 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 Supplemental Debt later time (other than Funding Shortfall Debt which shall be governed by Section 7.3(d) belowin whole or in part) in an amount greater than $250,000,000 unless the Borrower shall have demonstrated by delivery any manner that complies with this Section 4.08 and such item of an updated Base Case Forecast that (after taking into account the incurrence of such Supplemental Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date Indebtedness may be incurred partially under one clause and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes of this clause (i), the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume that all commitments for Supplemental Debt will be fully drawn as of the date on which such Supplemental Debt is incurred and Kroll reaffirms that the rating of the Senior Loans will not, as a result of the incurrence of such Supplemental Debt, be lower than the lower of (A) BBB and (B) the rating of the Senior Loans by Kroll immediately prior to such incurrence of such Supplemental Debtpartially under one or more other clauses.
(c) The Borrower principal amount of any Indebtedness outstanding under any clause of this covenant will not incur any Relevering Debt unless prior be determined after giving effect to the Project Completion Date, (A) application of proceeds of any such Relevering Debt is Reinstatement Debt or (B) (1) the incurrence of Indebtedness to refinance any such Relevering Debt would not cause the Debt to Equity Ratio to exceed 75:25 and (2) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), the Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRS, and following the Project Completion Date, (A) the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Relevering Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00 and (B) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), the Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRSIndebtedness.
(d) The Borrower 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 incur any Funding Shortfall Debt unless the Borrower shall have demonstrated by delivery of be deemed to be an updated Base Case Forecast that (after taking into account the incurrence of such Funding Shortfall Debt) the Credit Agreement Projected DSCR commencing on Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that Indebtedness for purposes of this clause (i)Section 4.08. Notwithstanding any other provision of this Section 4.08, the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume, if such Funding Shortfall Debt is incurred prior to the Project Completion Date, that all commitments for Funding Shortfall Debt will be fully drawn as maximum amount of the date on which such Funding Shortfall Debt is incurred and Kroll reaffirms Indebtedness that the rating of the Senior Loans will not, Company or any Subsidiary may incur pursuant to this Section 4.08 shall not be deemed to be exceeded solely as a result of the incurrence of such Funding Shortfall Debt, be lower than the lower of (A) BBB and (B) the rating of the Senior Loans by Kroll immediately prior to such incurrence of such Supplemental Debtfluctuations in exchange rates or currency values.
(e) The Borrower will not incur any Working Capital Debt unless each of the following conditions is satisfied:
(i) the aggregate principal amount of Working Capital Debt (including the then‑outstanding funded and unfunded commitments in respect of the CD Revolving Loans) may not at any time exceed $3,000,000,000; and
(ii) The condition set forth in Section 2.3(c)(ii) (Working Capital Debt) of the Common Terms Agreement has been satisfied.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Borrower Company will not, and will not permit any of the Guarantors to, directly or indirectly, createincur Indebtedness that will constitute First Lien Debt, incur, assume, permit, suffer to exist or otherwise be or become liable with respect to, contingently or otherwise (collectively, “incur”) any Replacement Debt unless the Borrower shall have demonstrated, by delivery of an updated Base Case Forecast that CNTA Ratio (after taking into account giving pro forma effect to any such incurrence and the incurrence of such Replacement Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as application of the end of each Fiscal Quarternet proceeds thereof) through the Notional Amortization Period shall not be less is equal to or greater than 1.40:1.00; provided, that for purposes of this clause (i) the Credit Agreement Projected CFADS used 1.66 to calculate the Credit Agreement Projected DSCR shall assume, if such Replacement Debt is incurred prior to the Project Completion Date, that all Senior Secured Debt Commitments will be fully drawn, a Specified Rating Reaffirmation shall have occurred, the weighted average life to maturity of the Replacement Debt shall be longer than the weighted average life to maturity of the Senior Secured Debt being replaced, and the final maturity date of the Replacement Debt shall occur after the maturity date of the Senior Secured Debt being replaced1.00.
(b) The Borrower will not incur any Supplemental Debt (other than Funding Shortfall Debt which shall be governed by Section 7.3(d) below) in an amount greater than $250,000,000 unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Supplemental Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for For purposes of this clause (i)Section 4.07, the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume that all commitments for Supplemental aggregate amount of First Lien Debt outstanding as of any date of determination will be fully calculated as the sum of, without duplication:
(1) the aggregate outstanding principal amount of all Indebtedness (or, 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 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 the date on which such Supplemental Debt is incurred and Kroll reaffirms that the rating of the Senior Loans will notdate, as a result of the incurrence of such Supplemental Debt, be lower than the lower of plus
(A) BBB and (B4) the rating aggregate outstanding principal amount of any First Lien Debt (or, if such Indebtedness is issued with original issue discount, the Senior Loans by Kroll immediately prior to such incurrence then accreted value thereof) outstanding consisting of such Supplemental Debtnotes, bonds, debentures, credit agreements (including any Eligible Commodity Hedge Financing) or similar instruments or agreements.
(c) The Borrower Section 4.07(a) hereof will not incur apply to:
(1) any Relevering Specified Cash Management and Swap Obligations, other Cash Management Obligations that would constitute First Lien Debt unless prior to the Project Completion Date, and any First Lien Hedging Obligations;
(A) such Relevering 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) the 2019 Notes, (D) the 2020 Notes, plus (E) 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 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 the Company be in pro forma compliance with any financial covenants thereunder);
(3) the Notes issued hereby on the date 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 is Reinstatement 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 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 (1i) the incurrence of such Relevering Debt would not cause the Debt to Equity Ratio to exceed 75:25 and (2) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), the Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRS, and following the Project Completion Date, (A) the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Relevering Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (in existence as of the end 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 each Fiscal Quarterthe amount of First Lien Debt outstanding pursuant to Section 4.07(b) through the Notional Amortization Period shall not be less than 1.40:1.00 and (B) upon the 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 Relevering Debt letters of credit, similar obligations and commitments;
(other than Reinstatement Debt)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 Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Krolllenders thereunder (or their representatives on their behalf) become a party to, or DBRS consent or agree to be bound by the terms and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇conditions, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRSof the Collateral Agency and Intercreditor Agreement.
(d) The Borrower will 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 Funding Shortfall Debt unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Funding Shortfall Debt) the Credit Agreement Projected DSCR commencing on Initial Principal Payment Date First Lien Hedging Obligations and for each rolling four Fiscal Quarter period (as any extension, renewal or refinancing of the end of each Fiscal QuarterEligible Commodity Hedge Financings existing on the 2017 Notes Issue Date) through the Notional Amortization Period shall not be less than 1.40:1.00; providedpursuant to Section 4.07(a) hereof, that for purposes of this clause (i2) any Permitted Refinancing Indebtedness 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 Credit Agreement Projected CFADS used to calculate foregoing, in each case that will constitute First Lien Debt unless:
(1) The Company and the Credit Agreement Projected DSCR Guarantors shall assumeenter into, if such Funding Shortfall Debt is incurred prior and deliver to the Project Completion DateCollateral Agent, that all commitments for Funding Shortfall Debt will be fully drawn as in the sole discretion of the date on which such Funding Shortfall Debt is incurred and Kroll reaffirms that 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 rating Collateral Agent and, as applicable, consistent with the mortgage modifications delivered in connection with the issuance of the Senior Loans Notes;
(2) The Company or the applicable Guarantor will notcause 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 a result applicable, consistent with the local counsel opinions delivered in connection with the issuance of the incurrence of such Funding Shortfall Debt, be lower than Notes;
(3) The Company or the lower of (A) BBB and (B) applicable Guarantor will cause a title company approved by the rating Collateral Agent to have delivered to the Collateral Agent an endorsement to each title insurance policy then in effect for the benefit of the Senior Loans by Kroll immediately prior Secured Parties, date down(s) or other evidence reasonably satisfactory to the Collateral Agent (which may include a new title insurance policy) (each such incurrence of such Supplemental Debt.
(e) The Borrower will not incur any Working Capital Debt unless delivery, a “Title Datedown Product”), in each of the following conditions is satisfied:
case insuring that (i) the aggregate principal amount of Working Capital Debt (including the then‑outstanding funded and unfunded commitments in respect priority of the CD Revolving LoansLien 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 (and not in connection with) such additional Indebtedness, there has been no change in the condition of title and (iii) there are no intervening liens or encumbrances which may not at any time exceed $3,000,000,000then or thereafter take priority over the Lien of the applicable mortgage(s), in each case other than with respect to Permitted Liens; and
(ii4) The condition set forth in Section 2.3(c)(ii) (Working Capital Debt) Company or the applicable Guarantor will, upon the request of the Common Terms Agreement has been satisfiedCollateral Agent, deliver to the 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 Lien of the mortgages as security for the Notes.
Appears in 1 contract
Sources: Indenture (Calpine Corp)
Incurrence of Indebtedness. (a) The Borrower will not, directly or indirectly, create, incur, assume, permit, suffer to exist or otherwise be or become liable with respect to, contingently or otherwise (collectively, “incur”) any Replacement Debt unless (i) the Borrower shall have demonstrated, by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Replacement Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes of this clause (i) the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume, if such Replacement Debt is incurred prior to the Project Completion Date, that all Senior Secured Debt Commitments will be fully drawn, (3) a Specified Rating Reaffirmation shall have occurred, (iii) the the weighted average life to maturity of the Replacement Debt shall be longer than the weighted average life to maturity of the Senior Secured Debt being replaced, and (iv)(4) the final maturity date of the Replacement Debt shall occur after the maturity date of the Senior Secured Debt being replaced.
(b) The Borrower will not incur any Supplemental Debt (other than Funding Shortfall Debt which shall be governed by Section 7.3(d) below) in an amount greater than $250,000,000 unless (i)(i) the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Supplemental Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes of this clause (i(i), the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume that all commitments for Supplemental Debt will be fully drawn as of the date on which such Supplemental Debt is incurred and Kroll (ii) ▇▇▇▇▇(ii) any Specified Rating Agency reaffirms that the rating of the Senior Loans will not, as a result of the incurrence of such Supplemental Debt, be lower than the lower of (A) BBB BBBthe Required Rating and (B) the rating of the Senior Loans by Kroll Krollany Specified Rating Agency immediately prior to such incurrence of such Supplemental Debt.
(c) The Borrower will not incur any Relevering Debt unless (i) prior to the Project Completion Date, (A) such Relevering Debt is Reinstatement Debt or (B) (1) the incurrence of such Relevering Debt would not cause the Debt to Equity Ratio to exceed 75:25 and (2) upon the incurrence of such Relevering Debt (other than |US-DOCS\143711048.26|| Reinstatement Debt), the Senior Loans shall be rated by any one of M▇▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS DBRSSpecified Rating Agency and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll▇▇▇▇▇, or BBB by DBRSDBRSthe Required Rating, and (ii) following the Project Completion Date, (A) the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Relevering Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00 and (B) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), the Senior Loans shall be rated by any one of M▇▇▇▇’▇Moody’s, S&P, Fitch, Kroll, or DBRS Specified Rating Agency and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll▇▇▇▇▇, or BBB by DBRSDBRSthe Required Rating.
(d) The Borrower will not incur any Funding Shortfall Debt unless (i) the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Funding Shortfall Debt) the Credit Agreement Projected DSCR commencing on Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes of this clause (i), the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume, if such Funding Shortfall Debt is incurred prior to the Project Completion Date, that all commitments for Funding Shortfall Debt will be fully drawn as of the date on which such Funding Shortfall Debt is incurred and Kroll (ii) Krollany Specified Rating Agency reaffirms that the rating of the Senior Loans will not, as a result of the incurrence of such Funding Shortfall Debt, be lower than the lower of (A) BBB BBBthe Required Rating and (B) the rating of the Senior Loans by Kroll Krollany Specified Rating Agency immediately prior to such incurrence of such Supplemental SupplementalFunding Shortfall Debt.
(e) The Borrower will not incur any Working Capital Debt unless each of the following conditions is satisfied:
(i) the aggregate principal amount of Working Capital Debt (including the then‑outstanding then-outstanding funded and unfunded commitments in respect of the CD Revolving Loans) may not at any time exceed $3,000,000,000; and
(ii) The condition set forth in Section 2.3(c)(ii) (Working Capital Debt) of the Common Terms Agreement has been satisfied.. |US-DOCS\143711048.26||
Appears in 1 contract
Sources: Credit Agreement (NextDecade Corp.)
Incurrence of Indebtedness. (a) The Borrower Company will not, and will not permit any of the Guarantors to, directly or indirectly, createincur Indebtedness that will constitute First Lien Debt, incur, assume, permit, suffer to exist or otherwise be or become liable with respect to, contingently or otherwise (collectively, “incur”) any Replacement Debt unless the Borrower shall have demonstrated, by delivery of an updated Base Case Forecast that CNTA Ratio (after taking into account giving pro forma effect to any such incurrence and the incurrence of such Replacement Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as application of the end of each Fiscal Quarternet proceeds thereof) through the Notional Amortization Period shall not be less is equal to or greater than 1.40:1.00; provided, that for purposes of this clause (i) the Credit Agreement Projected CFADS used 1.42 to calculate the Credit Agreement Projected DSCR shall assume, if such Replacement Debt is incurred prior to the Project Completion Date, that all Senior Secured Debt Commitments will be fully drawn, a Specified Rating Reaffirmation shall have occurred, the weighted average life to maturity of the Replacement Debt shall be longer than the weighted average life to maturity of the Senior Secured Debt being replaced, and the final maturity date of the Replacement Debt shall occur after the maturity date of the Senior Secured Debt being replaced1.00.
(b) The Borrower will not incur any Supplemental Debt (other than Funding Shortfall Debt which shall be governed by Section 7.3(d) below) in an amount greater than $250,000,000 unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Supplemental Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for For purposes of this clause (i)Section 4.07, the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume that all commitments for Supplemental aggregate amount of First Lien Debt outstanding as of any date of determination will be fully calculated as the sum of, without duplication:
(1) the aggregate outstanding principal amount of all Indebtedness (or, 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 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 the date on which such Supplemental Debt is incurred and Kroll reaffirms that the rating of the Senior Loans will notdate, as a result of the incurrence of such Supplemental Debt, be lower than the lower of plus
(A) BBB and (B4) the rating aggregate outstanding principal amount of any First Lien Debt (or, if such Indebtedness is issued with original issue discount, the Senior Loans by Kroll immediately prior to such incurrence then accreted value thereof) outstanding consisting of such Supplemental Debtnotes, bonds, debentures, credit agreements (including any Eligible Commodity Hedge Financing) or similar instruments or agreements.
(c) The Borrower Section 4.07(a) hereof will not incur apply to:
(1) any Relevering Specified Cash Management and Swap Obligations, other Cash Management Obligations that would constitute First Lien Debt unless prior to the Project Completion Date, and any First Lien Hedging Obligations;
(A) such Relevering 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) the 2019 Notes, plus (D) 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 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 the Company be in pro forma compliance with any financial covenants thereunder);
(3) the Notes issued hereby on the date 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 is Reinstatement 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 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 (1i) the incurrence of such Relevering Debt would not cause the Debt to Equity Ratio to exceed 75:25 and (2) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), the Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRS, and following the Project Completion Date, (A) the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Relevering Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (in existence as of the end 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 each Fiscal Quarterthe amount of First Lien Debt outstanding pursuant to Section 4.07(b) through the Notional Amortization Period shall not be less than 1.40:1.00 and (B) upon the 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 Relevering Debt letters of credit, similar obligations and commitments;
(other than Reinstatement Debt)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 Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Krolllenders thereunder (or their representatives on their behalf) become a party to, or DBRS consent or agree to be bound by the terms and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇conditions, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRSof the Collateral Agency and Intercreditor Agreement.
(d) The Borrower will 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 Funding Shortfall Debt unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Funding Shortfall Debt) the Credit Agreement Projected DSCR commencing on Initial Principal Payment Date First Lien Hedging Obligations and for each rolling four Fiscal Quarter period (as any extension, renewal or refinancing of the end of each Fiscal QuarterEligible Commodity Hedge Financings existing on the 2017 Notes Issue Date) through the Notional Amortization Period shall not be less than 1.40:1.00; providedpursuant to Section 4.07(a) hereof, that for purposes of this clause (i2) any Permitted Refinancing Indebtedness 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 Credit Agreement Projected CFADS used to calculate foregoing, in each case that will constitute First Lien Debt unless:
(1) The Company and the Credit Agreement Projected DSCR Guarantors shall assumeenter into, if such Funding Shortfall Debt is incurred prior and deliver to the Project Completion DateCollateral Agent, that all commitments for Funding Shortfall Debt will be fully drawn as in the sole discretion of the date on which such Funding Shortfall Debt is incurred and Kroll reaffirms that 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 rating Collateral Agent and, as applicable, consistent with the mortgage modifications delivered in connection with the issuance of the Senior Loans Notes;
(2) The Company or the applicable Guarantor will notcause 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 a result applicable, consistent with the local counsel opinions delivered in connection with the issuance of the incurrence of such Funding Shortfall Debt, be lower than Notes;
(3) The Company or the lower of (A) BBB and (B) applicable Guarantor will cause a title company approved by the rating Collateral Agent to have delivered to the Collateral Agent an endorsement to each title insurance policy then in effect for the benefit of the Senior Loans by Kroll immediately prior Secured Parties, date down(s) or other evidence reasonably satisfactory to the Collateral Agent (which may include a new title insurance policy) (each such incurrence of such Supplemental Debt.
(e) The Borrower will not incur any Working Capital Debt unless delivery, a “Title Datedown Product”), in each of the following conditions is satisfied:
case insuring that (i) the aggregate principal amount of Working Capital Debt (including the then‑outstanding funded and unfunded commitments in respect priority of the CD Revolving LoansLien 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 (and not in connection with) such additional Indebtedness, there has been no change in the condition of title and (iii) there are no intervening liens or encumbrances which may not at any time exceed $3,000,000,000then or thereafter take priority over the Lien of the applicable mortgage(s), in each case other than with respect to Permitted Liens; and
(ii4) The condition set forth in Section 2.3(c)(ii) (Working Capital Debt) Company or the applicable Guarantor will, upon the request of the Common Terms Agreement has been satisfiedCollateral Agent, deliver to the 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 Lien of the mortgages as security for the Notes.
Appears in 1 contract
Sources: Indenture (Calpine Corp)
Incurrence of Indebtedness. (a) The Borrower will Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, permit, suffer to exist guaranty or otherwise be become directly or become liable with respect toindirectly liable, contingently or otherwise otherwise, with respect to (collectively, “incur”) any Replacement Debt unless the Borrower shall have demonstrated, by delivery of an updated Base Case Forecast that Indebtedness (after taking into account the incurrence of such Replacement including Acquired Debt) and the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period Company shall not be less than 1.40:1.00issue any Disqualified Stock; provided, however, that for purposes of this clause (ia) the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume, if such Replacement Debt is incurred prior to the Project Completion Date, that all Senior Secured Debt Commitments will be fully drawn, a Specified Rating Reaffirmation shall have occurred, the weighted average life to maturity of the Replacement Debt shall be longer than the weighted average life to maturity of the Senior Secured Debt being replaced, and the final maturity date of the Replacement Debt shall occur after the maturity date of the Senior Secured Debt being replaced.
Company may incur Subordinated Indebtedness (b) The Borrower will not incur any Supplemental Debt (other than Funding Shortfall Debt which shall be governed by Section 7.3(d) below) in an amount greater than $250,000,000 unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Supplemental including Acquired Debt) and issue shares of Disqualified Stock if the Credit Agreement Projected DSCR commencing on Fixed Charge Coverage Ratio for the Initial Principal Payment Date and Company’s most recently ended four full fiscal quarters for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes of this clause (i), the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume that all commitments for Supplemental Debt will be fully drawn as of which internal financial statements are available immediately preceding the date on which such Supplemental Debt Subordinated Indebtedness is incurred and Kroll reaffirms that the rating of the Senior Loans will notor such Disqualified Stock is issued would have been at least 2.0 to 1, as a result of the incurrence of such Supplemental Debt, be lower than the lower of (A) BBB and (Bb) the rating of the Senior Loans by Kroll immediately prior to such incurrence of such Supplemental Debt.
(c) The Borrower will not Company may incur any Relevering Debt unless prior to the Project Completion Date, Indebtedness (Aincluding Acquired Debt) such Relevering Debt is Reinstatement Debt or (B) (1) the incurrence of such Relevering Debt would not cause the Debt to Equity Ratio to exceed 75:25 and (2) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), Subordinated Indebtedness if the Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRS, and following Fixed Charge Coverage Ratio for the Project Completion Date, (A) the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Relevering Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and Company’s most recently ended four full fiscal quarters for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00 and (B) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), the Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRS.
(d) The Borrower will not incur any Funding Shortfall Debt unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Funding Shortfall Debt) the Credit Agreement Projected DSCR commencing on Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes of this clause (i), the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume, if such Funding Shortfall Debt is incurred prior to the Project Completion Date, that all commitments for Funding Shortfall Debt will be fully drawn as of which internal financial statements are available immediately preceding the date on which such Funding Shortfall Debt additional Indebtedness is incurred would have been at least 2.5 to 1, in each case, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if such 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. The foregoing provisions shall not apply to: (i) Indebtedness represented by the Initial Series Bonds; (ii) Plan Indebtedness other than the Initial Series Bonds; (iii) Indebtedness arising under a nuclear fuel financing facility (including, without limitation, any Indebtedness represented by the nuclear fuel financing portion of the New Credit Agreement, if issued); provided, however, that an amount equal to the amount of such nuclear fuel financing facility (after deduction for any transaction costs) shall be applied first pursuant to the Plan or to redeem Retained Bonds pursuant to the Plan and Kroll reaffirms thereafter to retire Investor Series Bonds then Outstanding through open market purchases of such Bonds (or, if such Indebtedness is incurred more than 60 days from the Initial Issuance Date, such amount shall be used within 45 days of the receipt thereof by the Company to retire Investor Series Bonds then Outstanding through open market purchases of such Bonds); (iv) Indebtedness arising under an accounts receivable financing facility and/or contract payments financing facility; provided, however, that the rating net proceeds (after deduction for any transaction costs) from such facility shall be used within 45 days of the Senior Loans will notreceipt thereof by the Company to retire Investor Series Bonds then Outstanding through open market purchases of such Bonds; (v) any Indebtedness (not otherwise arising under clauses (iii) and (iv) above) issued to a bank or other commercial lender (including, as a result without limitation, Indebtedness represented by the working capital portion of the incurrence New Credit Agreement, if issued); provided, however, that any advances thereunder which shall result at any time in an amount outstanding in excess of $50,000,000 thereunder (after deduction for any transaction costs) shall be applied first pursuant to the Plan or to redeem Retained Bonds pursuant to the Plan and thereafter to retire Investor Series Bonds then Outstanding through open market purchases of such Funding Shortfall DebtBonds (or, if such amount is incurred more than 60 days after the Initial Issuance Date, such amount shall be lower than used within 45 days of receipt by the lower Company to retire Investor Series Bonds then Outstanding through open market purchases of such Bonds); (vi) the incurrence by the Company or any of its Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, or extensions, refunding, renewals or replacements thereof, in each case incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $5,000,000 at any time outstanding; (vii) the incurrence by the Company or any of its Subsidiaries of (A) BBB Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, Indebtedness permitted under clause (ii) above, and (B) any Indebtedness in exchange for, or the rating net proceeds of which are used to extend, refinance, renew, replace, defease or refund. Indebtedness permitted under clauses (iii), (iv) or (v) above so long as the principal amount of such Indebtedness does not exceed the principal amount of the Senior Loans Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded (plus the amount of accrued interest and premiums, if any, thereon and the reasonable expenses incurred in connection therewith); (viii) the incurrence by Kroll immediately prior the Company or any of its Subsidiaries of intercompany Indebtedness between and among the Company and any of its Wholly Owned Subsidiaries; provided, however, that (A) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than a Wholly Owned Subsidiary and (B) any sale or other transfer of any such Indebtedness to such a Person that is not either the Company or a Wholly Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of such Supplemental Debt.
Indebtedness by the Company or such Subsidiary, as the case may be; (eix) The Borrower will not incur the incurrence by the Company or any Working Capital Debt unless each of its Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms of the following conditions is satisfied:
Indenture to be outstanding; (ix) Bonds issued from time to time to secure the obligations of the Company under (A) each New Facility Agreement, (B) the aggregate pollution control bonds for which the Maricopa Reimbursement Agreement and/or Farmington Reimbursement Agreement provides credit support, or (C) any financing entered into in connection with the extension, refinancing, renewal or reminding of all or part of the Indebtedness under such New Facility Agreement, the Indebtedness in respect of such pollution control bonds for which such New Facility Agreement provides credit support, or the Indebtedness under such extension, refinancing, renewal or refunding; provided, however, that each such Bond shall by its terms provide that it shall be deemed paid in full at such time as the Company’s obligations referenced in the above subclauses (A), (B) or (C) of this clause (x) which such Bond is intended to secure, as the case may be, are paid in full and discharged, and that any payment made in respect of such Bond shall be deemed a payment made in respect of such underlying obligation which such Bond is intended to secure; and (xi) Subordinated Indebtedness incurred after the third anniversary of the Initial Issuance Date for the purpose of financing the redemption or repurchase of any Series A Preferred Stock of the Company, provided that (A) the principal amount of Working Capital Debt such Subordinated Indebtedness does not exceed the aggregate redemption or repurchase price of such Series A Preferred Stock (including plus accrued dividends thereon and reasonable expenses incurred in connection therewith), (B) the then‑outstanding funded and unfunded commitments interest rate on such Subordinated Indebtedness shall not exceed the dividend or coupon rate payable in respect of such Series A Preferred Stock, and (C) the CD Revolving Loans) may not at any time exceed $3,000,000,000; and
(ii) The condition set forth maturity date of such Subordinated Indebtedness shall be no sooner than the mandatory redemption date for the Series A Preferred Stock occurring in Section 2.3(c)(ii) (Working Capital Debt) of the Common Terms Agreement has been satisfiedyear 2008.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Borrower will Parent Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be become directly or become liable with respect toindirectly liable, contingently or otherwise otherwise, with respect to (collectively, “incur”) any Replacement Debt unless Indebtedness (including Acquired Debt); provided, however, that the Borrower Parent Company and any Restricted Subsidiary may incur Indebtedness (including Acquired Debt), if the Fixed Charge Coverage Ratio of the Parent Company for the Parent 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 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred at the beginning of such four-quarter period.
(b) Section 4.09(a) shall have demonstrated, by delivery of an updated Base Case Forecast that (after taking into account not prohibit the incurrence of such Replacement any of the following items of Indebtedness (collectively, “Permitted Debt”):
(i) the incurrence by the Parent Company and any Restricted Subsidiary of Indebtedness under Credit Agreement Projected DSCR commencing Facilities (including amounts outstanding on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as Issue Date); provided that the aggregate principal amount of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes of all Indebtedness permitted by this clause (i) at any one time outstanding does not exceed the Credit Agreement Projected CFADS used to calculate greater of (x) $250 million less any repayments actually made thereunder with the Credit Agreement Projected DSCR shall assume, if such Replacement Debt is incurred prior to the Project Completion Date, that all Senior Secured Debt Commitments will be fully drawn, a Specified Rating Reaffirmation shall have occurred, the weighted average life to maturity Net Proceeds of the Replacement Debt shall be longer than the weighted average life to maturity of the Senior Secured Debt being replaced, and the final maturity date of the Replacement Debt shall occur after the maturity date of the Senior Secured Debt being replaced.
Asset Sales in accordance with clause (b) The Borrower will of the second paragraph of Section 4.07 and (y) the Borrowing Base;
(ii) the incurrence by the Parent Company and its Restricted Subsidiaries of Existing Indebtedness (excluding amounts outstanding under the ABL Facility at the Issue Date);
(iii) the incurrence by the Company and the Guarantors of Indebtedness represented by the Notes and the Note Guarantees issued on the Issue Date;
(iv) the incurrence by the Parent Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Parent Company or such Restricted Subsidiary, in an aggregate principal amount (including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv)) not incur to exceed $50 million at any Supplemental Debt time outstanding;
(v) the incurrence by the Parent Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance, defease, discharge or replace, Indebtedness (other than Funding Shortfall Debt which intercompany Indebtedness) that was permitted by this Indenture to be incurred under the first paragraph of this Section 4.09 or clause (ii), (iii), (iv) or (ix) of this paragraph;
(vi) the incurrence by the Parent Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Parent Company and any of its Restricted Subsidiaries; provided, however, that:
(A) if the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is owed to or held by a Restricted Subsidiary that is not the Company or a Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of the Company, or the Note Guarantee of such Guarantor, in the case of a Guarantor; and
(B) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Parent Company or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Parent Company or a Restricted Subsidiary thereof, shall be governed by Section 7.3(d) below) deemed, in each case, to constitute an amount greater than $250,000,000 unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Supplemental DebtIndebtedness by the Parent Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi);
(vii) the Credit Agreement Projected DSCR commencing on incurrence by the Initial Principal Payment Date Parent Company or any of its Restricted Subsidiaries of (a) Hedging Obligations that are incurred for the purpose of hedging interest rate risk with respect to any Indebtedness that is permitted by the terms of this Indenture to be outstanding and for each rolling four Fiscal Quarter period (as b) other Hedging Obligations incurred in the ordinary course of business;
(viii) the guarantee by the Parent Company or any of its Restricted Subsidiaries of Indebtedness of the end of each Fiscal Quarter) through the Notional Amortization Period shall not Parent Company or a Restricted Subsidiary that was permitted to be less than 1.40:1.00; provided, that for purposes incurred by another provision of this Section 4.09;
(ix) the incurrence by the Parent Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accrued value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (i(ix), not to exceed $75 million;
(x) the Credit Agreement Projected CFADS used incurrence by the Parent 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 Parent Company and its Restricted Subsidiaries in the ordinary course of business (including any similar Indebtedness incurred to calculate refinance, retire, renew, defease, refund, discharge or otherwise replace any Indebtedness referred to in this clause (x)); and
(xi) indebtedness incurred by the Credit Agreement Projected DSCR shall assume that all commitments Parent Company or any of its Restricted Subsidiaries arising from agreements or their respective bylaws providing for Supplemental Debt will be fully drawn as 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 date on which such Supplemental Debt is incurred and Kroll reaffirms that the rating Parent Company or any of its Restricted Subsidiaries to any Person acquiring all or a portion of the Senior Loans will not, as a result business or assets of the incurrence of such Supplemental Debt, be lower than the lower of (A) BBB and (B) the rating of the Senior Loans by Kroll immediately prior to such incurrence of such Supplemental DebtParent Company or a Restricted Subsidiary.
(c) The Borrower will not incur any Relevering 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 unless prior 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 Project Completion Date, Parent Company shall be permitted to classify (Aor later reclassify in whole or in part in its sole discretion) such Relevering Debt is Reinstatement Debt 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 (B) (1) the incurrence first paragraph hereof, as the case may be, as designated by the Parent Company. Accrual of such Relevering Debt would not cause the Debt to Equity Ratio to exceed 75:25 and (2) upon the incurrence of such Relevering Debt (other than Reinstatement Debt)interest or dividends, the Senior Loans shall be rated by any one accretion of M▇▇▇▇’▇, S&P, Fitch, Kroll, accreted value or DBRS liquidation preference and at least one such rating shall be equal to the payment of interest or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, dividends in the form of additional Indebtedness or BBB by DBRS, and following the Project Completion Date, (A) the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Relevering Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period Disqualified Stock shall not be less than 1.40:1.00 and (B) upon the deemed to be an incurrence of such Relevering Debt (other than Reinstatement Debt), the Senior Loans shall be rated by any one Indebtedness or an issuance of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRS.
(d) The Borrower will not incur any Funding Shortfall Debt unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Funding Shortfall Debt) the Credit Agreement Projected DSCR commencing on Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that Disqualified Stock for purposes of this clause (i), the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume, if such Funding Shortfall Debt is incurred prior to the Project Completion Date, that all commitments for Funding Shortfall Debt will be fully drawn as of the date on which such Funding Shortfall Debt is incurred and Kroll reaffirms that the rating of the Senior Loans will not, as a result of the incurrence of such Funding Shortfall Debt, be lower than the lower of (A) BBB and (B) the rating of the Senior Loans by Kroll immediately prior to such incurrence of such Supplemental DebtSection 4.09.
(e) The Borrower will not incur any Working Capital Debt unless each of the following conditions is satisfied:
(i) the aggregate principal amount of Working Capital Debt (including the then‑outstanding funded and unfunded commitments in respect of the CD Revolving Loans) may not at any time exceed $3,000,000,000; and
(ii) The condition set forth in Section 2.3(c)(ii) (Working Capital Debt) of the Common Terms Agreement has been satisfied.
Appears in 1 contract
Sources: Indenture (Cenveo, Inc)
Incurrence of Indebtedness. The Issuer will not, and will not permit any of its Subsidiaries to, incur any Indebtedness, except the following:
(a) The Borrower will notIndebtedness existing on the Issue Date (provided that any such Indebtedness that is not intercompany Indebtedness shall be set forth on Schedule 9.2), directly or indirectly, create, incur, assume, permit, suffer to exist or otherwise be or become liable with respect to, contingently or otherwise and (collectively, “incur”ii) any Replacement Debt unless Permitted Refinancing thereof (other than intercompany Indebtedness refinanced with Indebtedness owed to a person not affiliated with the Borrower shall have demonstratedIssuer or any Subsidiary);
(b) Indebtedness created hereunder and under the other Note Documents;
(i) Indebtedness under the Solel Note Purchase Agreement in an aggregate principal amount not to exceed $24,025,718; provided that such Indebtedness is subject to the First Lien/First Lien Intercreditor Agreement and (ii) and any Permitted Refinancing thereof;
(i) secured Indebtedness of the Issuer or any Subsidiary secured by assets of the Note Parties not constituting Collateral, by delivery of an updated Base Case Forecast that (so long as immediately after taking into account giving effect to the incurrence of such Replacement Debt) Indebtedness and the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as use of the end proceeds thereof, 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 each Fiscal Quarter) through doubt, excluding the Notional Amortization Period shall not be less than 1.40:1.00; netting of any cash constituting the proceeds thereof), provided, that for purposes of this clause that, (ix) the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume, if such Replacement Debt is incurred prior to the Project Completion Date, that all Senior Secured Debt Commitments will be fully drawn, a Specified Rating Reaffirmation shall have occurred, the weighted average life to maturity of the Replacement Debt shall be longer than the weighted average life to maturity of the Senior Secured Debt being replaced, and the final maturity date of any such Indebtedness shall be no earlier than the Replacement Debt Maturity Date, and (y) the Weighted Average Life to Maturity of any such Indebtedness shall occur after be no shorter than the maturity date remaining Weighted Average Life to Maturity of the Senior Secured Debt being replaced.Notes, and (ii) any Permitted Refinancing thereof;
(bi) The Borrower will not incur secured Indebtedness of the Issuer or any Supplemental Debt (other than Funding Shortfall Debt which shall be governed Subsidiary secured by Section 7.3(d) below) in an amount greater than $250,000,000 unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (Collateral so long as immediately after taking into account giving effect to the incurrence of such Supplemental DebtIndebtedness and the use of the proceeds thereof, (1) the Credit Agreement Projected DSCR commencing 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 Initial Principal Payment Date 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 for each rolling four Fiscal Quarter period (as 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 end Issuer or any Note Party so long as immediately after giving effect to the incurrence of each Fiscal Quartersuch 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) through Indebtedness of Pro Farm and any of its Subsidiaries incurred after the Notional Amortization Period shall Effective Date consisting of ordinary course working capital facilities in an aggregate principal amount not be less than 1.40:1.00to 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 for purposes at the time of this clause (i), the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume that all commitments for Supplemental Debt will be fully drawn as of the date on which such Supplemental Debt is incurred and Kroll reaffirms that the rating of the Senior Loans will not, as a result of the incurrence of such Supplemental DebtIndebtedness, be lower than the lower of (A) BBB 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 (B) the rating of the Senior Loans by Kroll immediately prior to such incurrence of such Supplemental Debt.
(c) The Borrower will not incur any Relevering Debt unless prior substance satisfactory to the Project Completion Date, (A) such Relevering Debt is Reinstatement Debt or (B) (1) Collateral Agent and the incurrence of such Relevering Debt would not cause the Debt to Equity Ratio to exceed 75:25 and (2) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), the Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRS, and following the Project Completion Date, (A) the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Relevering Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00 and (B) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), the Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRS.
(d) The Borrower will not incur any Funding Shortfall Debt unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Funding Shortfall Debt) the Credit Agreement Projected DSCR commencing on Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes of this clause (i), the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume, if such Funding Shortfall Debt is incurred prior Majority Holders. Notwithstanding anything to the Project Completion Datecontrary in this Agreement, that all commitments for Funding Shortfall Debt will be fully drawn as of the date on which such Funding Shortfall Debt is incurred and Kroll reaffirms that the rating of the Senior Loans will not, as a result of the incurrence of such Funding Shortfall Debt, be lower than the lower of (A) BBB and (B) the rating of the Senior Loans by Kroll immediately prior to such incurrence of such Supplemental Debt.
(e) The Borrower will not incur any Working Capital Debt unless each of the following conditions is satisfied:
(i) on the Issue Date, the aggregate principal amount of Working Capital Debt (including Indebtedness secured by the then‑outstanding funded and unfunded commitments in respect Collateral or any other assets owned by Pro Farm or any of the CD Revolving Loans) may its Subsidiaries shall not at any time exceed $3,000,000,000; and
90,000,000 and (ii) The condition set forth in no Subsidiary of Pro Farm that is not a Guarantor shall be permitted to incur, or (subject to Section 2.3(c)(ii9.5) guarantee, any Indebtedness pursuant to Sections 9.2(a), (Working Capital Debtd), (e), (f), (g) of the Common Terms Agreement has been satisfiedor (h).
Appears in 1 contract
Sources: Note Purchase Agreement (Bioceres Crop Solutions Corp.)
Incurrence of Indebtedness. (a) The Borrower Company will not, directly or indirectlynor will it permit any Subsidiary to, at any time create, incurissue, incur (by conversion, exchange or otherwise), assume, permit, suffer to exist guarantee or otherwise be or become liable with in respect to, contingently or otherwise of any Indebtedness (collectively, “incur”including Acquired Indebtedness) any Replacement Debt unless the Borrower shall have demonstrated, by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Replacement Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period other than Permitted Indebtedness (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes of this clause (i) the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume, if such Replacement Debt is incurred prior to the Project Completion Date, that all Senior Secured Debt Commitments will be fully drawn, a Specified Rating Reaffirmation shall have occurred, the weighted average life to maturity of the Replacement Debt shall be longer than the weighted average life to maturity of the Senior Secured Debt being replaced, and the final maturity date of the Replacement Debt shall occur after the maturity date of the Senior Secured Debt being replaceddefined below).
(b) The Borrower provisions of Section 4.09(a) hereof will not incur any Supplemental Debt (other than Funding Shortfall Debt which shall be governed by Section 7.3(d) below) in an amount greater than $250,000,000 unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account prohibit the incurrence of such Supplemental Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as any of the end following items of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; providedIndebtedness (collectively, that for purposes of this clause (i), the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume that all commitments for Supplemental Debt will be fully drawn as of the date on which such Supplemental Debt is incurred and Kroll reaffirms that the rating of the Senior Loans will not, as a result of the incurrence of such Supplemental Debt, be lower than the lower of (A) BBB and (B) the rating of the Senior Loans by Kroll immediately prior to such incurrence of such Supplemental Debt.“Permitted Indebtedness”):
(c) The Borrower will not incur any Relevering Debt unless prior to the Project Completion Date, (A) such Relevering Debt is Reinstatement Debt or (B) (1) Indebtedness under the incurrence of such Relevering Debt would Senior Secured Credit Facility in an aggregate principal amount not cause the Debt to Equity Ratio to exceed 75:25 and (2) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), the Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRS, and following the Project Completion Date, (A) the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Relevering Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be $3,500.0 million less than 1.40:1.00 and (B) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), the Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRS.
(d) The Borrower will not incur any Funding Shortfall Debt unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Funding Shortfall Debt) the Credit Agreement Projected DSCR commencing on Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes of this clause (i), the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume, if such Funding Shortfall Debt is incurred prior to the Project Completion Date, that all commitments for Funding Shortfall Debt will be fully drawn as of the date on which such Funding Shortfall Debt is incurred and Kroll reaffirms that the rating of the Senior Loans will not, as a result of the incurrence of such Funding Shortfall Debt, be lower than the lower of (A) BBB and (B) the rating of the Senior Loans by Kroll immediately prior to such incurrence of such Supplemental Debt.
(e) The Borrower will not incur any Working Capital Debt unless each of the following conditions is satisfied:
(i) the aggregate principal amount of Working Capital Debt 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 on the Issue Date and up to $2,150.0 million of Notes (including the then‑outstanding funded Initial Notes) issued in exchange for Existing Notes maturing prior to December 31, 2009 and unfunded commitments up to $6,250.0 million of Junior Secured Notes (including Junior Secured Notes issued on the Issue Date) issued in exchange for any other Existing Notes;
(3) Permitted Funding Indebtedness;
(4) Indebtedness among the Company and 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 CD Revolving Loans) may Company and the Guarantors that is subordinated to the Notes and the Guarantees;
(8) Indebtedness to the GMAC Parties incurred in accordance with the provisions described in Section 4.11, provided that such Indebtedness is not at secured by any time exceed $3,000,000,000Collateral; and
(ii9) The condition set forth Indebtedness of the Company or any Subsidiary 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 exceed $500.0 million. For purposes of determining compliance with this Section 2.3(c)(ii4.09, and the outstanding principal amount of any particular Indebtedness incurred pursuant to and in compliance with, this Section 4.09: (x) in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (Working Capital Debt1) through (9) of this Section 4.09(b), the Common Terms Agreement has 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 satisfiedincurred 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 principal amount of any Disqualified Equity Interests will be equal to the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof.
Appears in 1 contract
Sources: Indenture (Residential Capital, LLC)
Incurrence of Indebtedness. (a) The Borrower Company will not, and will not permit any of the Guarantors to, directly or indirectly, createincur Indebtedness that will constitute First Lien Debt, incur, assume, permit, suffer to exist or otherwise be or become liable with respect to, contingently or otherwise (collectively, “incur”) any Replacement Debt unless the Borrower shall have demonstrated, by delivery of an updated Base Case Forecast that CNTA Ratio (after taking into account giving pro forma effect to any such incurrence and the incurrence of such Replacement Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as application of the end of each Fiscal Quarternet proceeds thereof) through the Notional Amortization Period shall not be less is equal to or greater than 1.40:1.00; provided, that for purposes of this clause (i) the Credit Agreement Projected CFADS used 1.66 to calculate the Credit Agreement Projected DSCR shall assume, if such Replacement Debt is incurred prior to the Project Completion Date, that all Senior Secured Debt Commitments will be fully drawn, a Specified Rating Reaffirmation shall have occurred, the weighted average life to maturity of the Replacement Debt shall be longer than the weighted average life to maturity of the Senior Secured Debt being replaced, and the final maturity date of the Replacement Debt shall occur after the maturity date of the Senior Secured Debt being replaced1.00.
(b) The Borrower will not incur any Supplemental Debt (other than Funding Shortfall Debt which shall be governed by Section 7.3(d) below) in an amount greater than $250,000,000 unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Supplemental Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for For purposes of this clause (i)Section 4.07, the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume that all commitments for Supplemental aggregate amount of First Lien Debt outstanding as of any date of determination will be fully calculated as the sum of, without duplication:
(1) the aggregate outstanding principal amount of all Indebtedness (or, 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 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 the date on which such Supplemental Debt is incurred and Kroll reaffirms that the rating of the Senior Loans will notdate, as a result of the incurrence of such Supplemental Debt, be lower than the lower of plus
(A) BBB and (B4) the rating aggregate outstanding principal amount of any First Lien Debt (or, if such Indebtedness is issued with original issue discount, the Senior Loans by Kroll immediately prior to such incurrence then accreted value thereof) outstanding consisting of such Supplemental Debtnotes, bonds, debentures, credit agreements (including any Eligible Commodity Hedge Financing) or similar instruments or agreements.
(c) The Borrower Section 4.07(a) hereof will not incur apply to:
(1) any Relevering Specified Cash Management and Swap Obligations, other Cash Management Obligations that would constitute First Lien Debt unless prior to the Project Completion Date, and any First Lien Hedging Obligations;
(A) such Relevering 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) the 2019 Notes, (D) the 2020 Notes, (E) the 2021 Notes, plus (F) 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 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 the Company be in pro forma compliance with any financial covenants thereunder);
(3) the Notes issued hereby on the date 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 is Reinstatement 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 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 (1i) the incurrence of such Relevering Debt would not cause the Debt to Equity Ratio to exceed 75:25 and (2) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), the Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRS, and following the Project Completion Date, (A) the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Relevering Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (in existence as of the end 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 each Fiscal Quarterthe amount of First Lien Debt outstanding pursuant to Section 4.07(b) through the Notional Amortization Period shall not be less than 1.40:1.00 and (B) upon the 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 Relevering Debt letters of credit, similar obligations and commitments;
(other than Reinstatement Debt)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 Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Krolllenders thereunder (or their representatives on their behalf) become a party to, or DBRS consent or agree to be bound by the terms and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇conditions, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRSof the Collateral Agency and Intercreditor Agreement.
(d) The Borrower will 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 Funding Shortfall Debt unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Funding Shortfall Debt) the Credit Agreement Projected DSCR commencing on Initial Principal Payment Date First Lien Hedging Obligations and for each rolling four Fiscal Quarter period (as any extension, renewal or refinancing of the end of each Fiscal QuarterEligible Commodity Hedge Financings existing on the 2017 Notes Issue Date) through the Notional Amortization Period shall not be less than 1.40:1.00; providedpursuant to Section 4.07(a) hereof, that for purposes of this clause (i2) any Permitted Refinancing Indebtedness 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 Credit Agreement Projected CFADS used to calculate foregoing, in each case that will constitute First Lien Debt unless:
(1) The Company and the Credit Agreement Projected DSCR Guarantors shall assumeenter into, if such Funding Shortfall Debt is incurred prior and deliver to the Project Completion DateCollateral Agent, that all commitments for Funding Shortfall Debt will be fully drawn as in the sole discretion of the date on which such Funding Shortfall Debt is incurred and Kroll reaffirms that 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 rating Collateral Agent and, as applicable, consistent with the mortgage modifications delivered in connection with the issuance of the Senior Loans Notes;
(2) The Company or the applicable Guarantor will notcause 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 a result applicable, consistent with the local counsel opinions delivered in connection with the issuance of the incurrence of such Funding Shortfall Debt, be lower than Notes;
(3) The Company or the lower of (A) BBB and (B) applicable Guarantor will cause a title company approved by the rating Collateral Agent to have delivered to the Collateral Agent an endorsement to each title insurance policy then in effect for the benefit of the Senior Loans by Kroll immediately prior Secured Parties, date down(s) or other evidence reasonably satisfactory to the Collateral Agent (which may include a new title insurance policy) (each such incurrence of such Supplemental Debt.
(e) The Borrower will not incur any Working Capital Debt unless delivery, a “Title Datedown Product”), in each of the following conditions is satisfied:
case insuring that (i) the aggregate principal amount of Working Capital Debt (including the then‑outstanding funded and unfunded commitments in respect priority of the CD Revolving LoansLien 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 (and not in connection with) such additional Indebtedness, there has been no change in the condition of title and (iii) there are no intervening liens or encumbrances which may not at any time exceed $3,000,000,000then or thereafter take priority over the Lien of the applicable mortgage(s), in each case other than with respect to Permitted Liens; and
(ii4) The condition set forth in Section 2.3(c)(ii) (Working Capital Debt) Company or the applicable Guarantor will, upon the request of the Common Terms Agreement has been satisfiedCollateral Agent, deliver to the 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 Lien of the mortgages as security for the Notes.
Appears in 1 contract
Sources: Indenture (Calpine Corp)
Incurrence of Indebtedness. (a) The Borrower will Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, permit, suffer to exist guaranty or otherwise be become directly or become liable with respect toindirectly liable, contingently or otherwise otherwise, with respect to (collectively, “incur”) any Replacement Debt unless the Borrower shall have demonstrated, by delivery of an updated Base Case Forecast that Indebtedness (after taking into account the incurrence of such Replacement including Acquired Debt) and the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period Company shall not be less than 1.40:1.00issue any Disqualified Stock; provided, however, that for purposes of this clause (ia) the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume, if such Replacement Debt is incurred prior to the Project Completion Date, that all Senior Secured Debt Commitments will be fully drawn, a Specified Rating Reaffirmation shall have occurred, the weighted average life to maturity of the Replacement Debt shall be longer than the weighted average life to maturity of the Senior Secured Debt being replaced, and the final maturity date of the Replacement Debt shall occur after the maturity date of the Senior Secured Debt being replaced.
Company may incur Subordinated Indebtedness (b) The Borrower will not incur any Supplemental Debt (other than Funding Shortfall Debt which shall be governed by Section 7.3(d) below) in an amount greater than $250,000,000 unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Supplemental including Acquired Debt) and issue shares of Disqualified Stock if the Credit Agreement Projected DSCR commencing on Fixed Charge Coverage Ratio for the Initial Principal Payment Date and Company’s most recently ended four full fiscal quarters for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes of this clause (i), the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume that all commitments for Supplemental Debt will be fully drawn as of which internal financial statements are available immediately preceding the date on which such Supplemental Debt Subordinated Indebtedness is incurred and Kroll reaffirms that the rating of the Senior Loans will notor such Disqualified Stock is issued would have been at least 2.0 to 1, as a result of the incurrence of such Supplemental Debt, be lower than the lower of (A) BBB and (Bb) the rating of the Senior Loans by Kroll immediately prior to such incurrence of such Supplemental Debt.
(c) The Borrower will not Company may incur any Relevering Debt unless prior to the Project Completion Date, Indebtedness (Aincluding Acquired Debt) such Relevering Debt is Reinstatement Debt or (B) (1) the incurrence of such Relevering Debt would not cause the Debt to Equity Ratio to exceed 75:25 and (2) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), Subordinated Indebtedness if the Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRS, and following Fixed Charge Coverage Ratio for the Project Completion Date, (A) the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Relevering Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and Company’s most recently ended four full fiscal quarters for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00 and (B) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), the Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRS.
(d) The Borrower will not incur any Funding Shortfall Debt unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Funding Shortfall Debt) the Credit Agreement Projected DSCR commencing on Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes of this clause (i), the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume, if such Funding Shortfall Debt is incurred prior to the Project Completion Date, that all commitments for Funding Shortfall Debt will be fully drawn as of which internal financial statements are available immediately preceding the date on which such Funding Shortfall Debt additional Indebtedness is incurred would have been at least 2.5 to 1, in each case, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if such 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. The foregoing provisions shall not apply to: (i) Indebtedness represented by the Initial Series Bonds; (ii) Plan Indebtedness other than the Initial Series Bonds: (iii) Indebtedness arising under a nuclear fuel financing facility (including, without limitation, any Indebtedness represented by the nuclear fuel financing portion of the New Credit Agreement): provided, however, that an amount equal to the amount of such nuclear fuel financing facility (after deduction for any transaction costs) shall have been applied pursuant to the Plan or, thereafter the positive difference, if any, between the amount of the nuclear fuel financing facility and Kroll reaffirms the amount previously applied either pursuant to the Plan or to retire Investor Series Bonds shall be used within 45 days of the receipt thereof by the Company to retire Investor Series Bonds then Outstanding through open market purchases of such Bonds; (iv) Indebtedness arising under an accounts receivable financing facility and or contract payments financing facility provided, however, that the rating net proceeds (after deduction for any transaction costs) from such facility shall be used within 45 days of the Senior Loans will notreceipt thereof by the Company to retire Investor Series Bonds then Outstanding through open market purchases of such Bonds; (v) any Indebtedness (not otherwise arising under clauses (iii) and (iv) above) issued to a bank or other commercial lender (including, as a result without limitation, Indebtedness represented by the working capital portion of the incurrence New Credit Agreement, if issued); provided, however, that any advances thereunder which shall result at any time in an amount outstanding in excess of $50,000,000 thereunder (after deduction for any transaction costs) shall be used within 45 days of receipt by the Company to retire Investor Series Bonds then Outstanding through open market purchases of such Funding Shortfall DebtBonds); (vi) the incurrence by the Company or any of its Subsidiaries of Indebtedness represented by Capital Lease Obligations, be lower than mortgage financings or purchase money obligations, or extensions, refinancings, renewals or replacements thereof, in each case incurred for the lower purpose of financing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $5,000,000 at any time outstanding; (vii) the incurrence by the Company or any of its Subsidiaries of (A) BBB Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, Indebtedness permitted under clause (ii) above, and (B) any Indebtedness in exchange for, or the rating net proceeds of which are used to extend, refinance, renew, replace, defease or refund. Indebtedness permitted under clauses (iii), (iv) or (v) above so long as the principal amount of such Indebtedness does not exceed the principal amount of the Senior Loans Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded (plus the amount of accrued interest and premiums, if any, thereon and the reasonable expenses incurred in connection therewith); (viii) the incurrence by Kroll immediately prior the Company or any of its Subsidiaries of intercompany Indebtedness between and among the Company and any of its Wholly Owned Subsidiaries; provided, however, that (A) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than a Wholly Owned Subsidiary and (B) any sale or other transfer of any such Indebtedness to such a Person that is not either the Company or a Wholly Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of such Supplemental Debt.
Indebtedness by the Company or such Subsidiary, as the case may be; (eix) The Borrower will not incur the incurrence by the Company or any Working Capital Debt unless each of its Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms of the following conditions is satisfied:
Indenture to be outstanding; (ix)Bonds issued from time to time to secure the obligations of the Company under (A) each New Facility Agreement or New Reimbursement Agreement, (B) the aggregate pollution control bonds for which the New Maricopa Reimbursement Agreement and/or New Farmington Reimbursement Agreements provides credit support, or (C) any financing entered into in connection with the extension, refinancing, renewal or refunding of all or part of the Indebtedness under such New Facility Agreement or New Reimbursement Agreement, the Indebtedness in respect of such pollution control bonds for which such New Facility Agreement or New Reimbursement Agreement provides credit support, or the Indebtedness under such extension, refinancing, renewal or refunding; provided, however, that each such Bond shall by its terms provide that it shall be deemed paid in full at such time as the Company’s obligations referenced in the above subclauses (A), (B) or (C) of this clause (x) which such Bond is intended to secure, as the case may be, are paid in full and discharged, and that any payment made in respect of such Bond shall be deemed a payment made in respect of such underlying obligation which such Bond is intended to secure; and (xi) Subordinated Indebtedness incurred after the third anniversary of the Initial Issuance Date for the purpose of financing the redemption or repurchase of any Series A Preferred Stock of the Company, provided that (A) the principal amount of Working Capital Debt such Subordinated Indebtedness does not exceed the aggregate redemption or repurchase price of such Series A Preferred Stock (including plus accrued dividends thereon and reasonable expenses incurred in connection therewith), (B) the then‑outstanding funded and unfunded commitments interest rate on such Subordinated Indebtedness shall not exceed the dividend or coupon rate payable in respect of such Series A Preferred Stock, and (C) the CD Revolving Loans) may not at any time exceed $3,000,000,000; and
(ii) The condition set forth maturity date of such Subordinated Indebtedness shall be no sooner than the mandatory redemption date for the Series A Preferred Stock occurring in Section 2.3(c)(ii) (Working Capital Debt) of the Common Terms Agreement has been satisfiedyear 2008.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Borrower Representative will not, directly or indirectly, create, not permit any of its Subsidiaries to incur, assume, permit, assume or suffer to exist any Indebtedness, except:
(i) Indebtedness outstanding on the Amendment No. 3 Effective Date and included either in the Base Financials or otherwise be listed in Schedule III hereto;
(ii) Indebtedness incurred after the Amendment No. 3 Effective Date in connection with Lease Cancellation Payments, 15 provided that the aggregate principal amount of all such Indebtedness outstanding at any time shall not exceed $20,000,000;
(iii) Indebtedness secured by a Lien permitted pursuant to clause (iii) of subsection 10.2(g)(a);
(iv) Indebtedness of any corporation that became or become liable with respect tobecomes a Consolidated Subsidiary of the Representative after the Amendment No. 3 Effective Date that existed or exists at the time such corporation became or becomes such a Consolidated Subsidiary and (other than in a Workout Transaction) not created in contemplation thereof;
(v) Indebtedness ("Refinancing Debt") incurred to refinance Indebtedness ("Refinanced Debt") permitted under clauses (i) through (iv) above, contingently or otherwise provided that (collectively, “incur”A) any Replacement the principal amount of such Refinancing Debt unless shall not exceed the Borrower principal amount of such Refinanced Debt and (B) such Refinancing Debt shall have demonstrated, by delivery a weighted average life of an updated Base Case Forecast that (after taking into account not less than the incurrence remaining weighted average life of such Replacement Debt) Refinanced Debt or such Refinancing Debt shall not have any required payments of principal prior to the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as first anniversary of the end Termination Date;
(vi) Permitted Receivables Financing Securities, provided that the aggregate principal and redemption amount of each Fiscal Quarterall Permitted Receivables Financing Securities outstanding at any time shall not exceed $100,000,000;
(vii) Indebtedness incurred under the Financing Documents;
(viii) Guarantees by any Subsidiary of the Representative of any obligation of the Representative or any of its other Subsidiaries that such guaranteeing Subsidiary would have been permitted to incur hereunder as a primary obligation;
(ix) Indebtedness consisting of advances from the Representative or any of its Subsidiaries in connection with the normal operation of the business of the Representative and its Subsidiaries;
(x) Indebtedness incurred in connection with and as part of a Workout Transaction;
(xi) Indebtedness incurred or assumed for the purpose of financing the cost of acquiring, constructing or improving an asset of the Representative or any of its Subsidiaries;
(xii) Indebtedness incurred under the New Senior Notes and Guarantees thereof by the Subsidiary Guarantors;
(xiii) Permitted Preferred Stock; and
(xiv) Indebtedness not otherwise permitted under clauses (i) through (xiii) of this Section, provided that the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes aggregate principal amount of all Indebtedness permitted under this clause (ixiv) the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume, if such Replacement Debt that is incurred prior to the Project Completion Date, that all Senior Secured Debt Commitments will be fully drawn, a Specified Rating Reaffirmation shall have occurred, the weighted average life to maturity of the Replacement Debt shall be longer than the weighted average life to maturity of the Senior Secured Debt being replaced, and the final maturity date of the Replacement Debt shall occur on or after the maturity date of the Senior Secured Debt being replacedAmendment No. 3 Effective Date shall not at any time exceed $20,000,000.
(b) The Borrower Representative will not incur permit any Supplemental Debt (Issuer or any Subsidiary of any Issuer to incur, assume or suffer to exist Indebtedness other than Funding Shortfall Debt which shall be governed by Section 7.3(d) below) in an amount greater than $250,000,000 unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Supplemental Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes of this clause (i), the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume that all commitments for Supplemental Debt will be fully drawn as of the date on which such Supplemental Debt is incurred and Kroll reaffirms that the rating of the Senior Loans will not, as a result of the incurrence of such Supplemental Debt, be lower than the lower of (A) BBB and (B) the rating of the Senior Loans by Kroll immediately prior to such incurrence of such Supplemental Debt.
(c) The Borrower will not incur any Relevering Debt unless prior to the Project Completion Date, (A) such Relevering Debt is Reinstatement Debt or (B) (1) the incurrence of such Relevering Debt would not cause the Debt to Equity Ratio to exceed 75:25 and (2) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), the Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRS, and following the Project Completion Date, (A) the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Relevering Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00 and (B) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), the Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRS.
(d) The Borrower will not incur any Funding Shortfall Debt unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Funding Shortfall Debt) the Credit Agreement Projected DSCR commencing on Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes of this clause Indebtedness permitted under clauses (i), the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume, if such Funding Shortfall Debt is incurred prior (ii) (but only to the Project Completion Date, that all commitments for Funding Shortfall Debt will be fully drawn as of the date on which such Funding Shortfall Debt is incurred and Kroll reaffirms extent that the rating of Lease Cancellation Payments relate to a facility operated by any such Issuer or Subsidiary), (iii), (iv), (v) (to the Senior Loans will notextent the Refinanced Indebtedness referred to therein is Indebtedness referred to in clauses (i), as (ii) (but only to the extent that the Lease Cancellation Payments relate to a result of facility operated by any such Issuer or Subsidiary), (iii) and (iv)), (vi), (vii), (viii), (ix), (x), (xi) (but only to the incurrence extent that the assets acquired, constructed or approved with the proceeds of such Funding Shortfall DebtIndebtedness are assets of such Issuer or such Subsidiary), be lower than the lower of (Axii) BBB and (Bxiv) the rating of the Senior Loans by Kroll immediately prior to such incurrence of such Supplemental Debt.
(esubsection 10.2(i)(a) The Borrower will not incur any Working Capital Debt unless each of the following conditions is satisfied:
(i) above; provided that the aggregate principal amount of Working Capital Debt Indebtedness of such Issuers and Subsidiaries permitted under clauses (including viii) (other than guarantees by an Issuer or any of its Subsidiaries of Indebtedness of an Issuer or any of its Subsidiaries) and (xiv) shall not exceed, in the then‑outstanding funded aggregate, $20,000,000 and unfunded commitments in respect (B) guarantees of obligations of Subsidiaries of the CD Revolving LoansRepresentative, which obligations are permitted under clause (xi) of Section 10.2(i)(a) above and arise under any of the Other Financing Agreements and refinancings, extensions, replacements and increases of any of the foregoing, provided that the aggregate principal amount of Indebtedness permitted under this clause (B) may not at any time exceed $3,000,000,000; and
(ii) The condition set forth in Section 2.3(c)(ii) (Working Capital Debt) of the Common Terms Agreement has been satisfied160,000,000."
Appears in 1 contract
Incurrence of Indebtedness. Concurrently upon the receipt by the Borrower or any Guarantor of any Indebtedness that is not Permitted Debt, the Borrower shall prepay the outstanding principal amount of the Loans (atogether with accrued and unpaid interest on the Loans so repaid) The Borrower will not, directly or indirectly, create, incur, assume, permit, suffer in an amount equal to exist or otherwise one hundred percent (100%) of such Net Proceeds. Amounts to be or become liable applied in connection with respect to, contingently or otherwise prepayments made pursuant to Sections 2.2(c)(ii)-(v) shall be payable to each Lender in accordance with its respective Pro Rata Share; provided that any Lender may decline any such prepayment (collectively, the “incurDeclined Amount”) any Replacement Debt unless ), in which case the Declined Amount shall be retained by the Borrower. The Borrower shall have demonstrated, by delivery of an updated Base Case Forecast that (after taking into account deliver to each Lender and the incurrence of such Replacement Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end Administrative Agent notice of each Fiscal Quarterprepayment of Revolving Loans in whole or in part pursuant to Sections 2.2(c)(ii)-(v) through the Notional Amortization Period shall not be less than 1.40:1.00; providedfive (5) Business Days prior to the date such prepayment shall be made (each, that for purposes of this clause a “Mandatory Prepayment Date”). Such notice shall set forth (i) the Credit Agreement Projected CFADS used Mandatory Prepayment Date, (ii) the aggregate amount of such prepayment and (iii) the option of each Lender to calculate (x) decline its share of such prepayment or (y) accept its share of such prepayment. Any Lender that wishes to exercise its option to decline such prepayment shall notify Borrower and the Credit Agreement Projected DSCR shall assume, if such Replacement Debt is incurred Administrative Agent not later than three (3) Business Days prior to the Project Completion Mandatory Prepayment Date, . In the event that all Senior Secured Debt Commitments will be fully drawn, a Specified Rating Reaffirmation shall have occurred, any Lender does not notify the weighted average life to maturity of the Replacement Debt shall be longer than the weighted average life to maturity of the Senior Secured Debt being replaced, Borrower and the final maturity date of Administrative Agent that it is exercising its option to decline such prepayment by the Replacement Debt shall occur after the maturity date of the Senior Secured Debt being replaced.
third (b3rd) The Borrower will not incur any Supplemental Debt (other than Funding Shortfall Debt which shall be governed by Section 7.3(d) below) in an amount greater than $250,000,000 unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Supplemental Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes of this clause (i), the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume that all commitments for Supplemental Debt will be fully drawn as of the date on which such Supplemental Debt is incurred and Kroll reaffirms that the rating of the Senior Loans will not, as a result of the incurrence of such Supplemental Debt, be lower than the lower of (A) BBB and (B) the rating of the Senior Loans by Kroll immediately prior to such incurrence of such Supplemental Debt.
(c) The Borrower will not incur any Relevering Debt unless Business Day prior to the Project Completion Mandatory Prepayment Date, (A) then such Relevering Debt is Reinstatement Debt or (B) (1) the incurrence of such Relevering Debt would not cause the Debt to Equity Ratio to exceed 75:25 and (2) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), the Senior Loans Lender shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS and at least one deemed to have elected to receive such rating prepayment. Amounts to be applied in connection with prepayments made pursuant to Sections 2.2(c)(i)-(v) shall be equal accompanied by an automatic dollar-for-dollar permanent reduction in each Lender’s respective pro rata Revolving Credit Commitment; provided that, if any prepayment made pursuant to or better than Baa2 this Section 2.2 would reduce the amount of the outstanding Revolving Loans to zero at a time when the Revolving Credit Commitments have been terminated, such prepayment shall be accompanied by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRSpayment of all fees accrued to such date pursuant to Section 2.4. The Borrower shall not, and following the Project Completion Date, (A) the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Relevering Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00 and (B) upon the incurrence permit any of such Relevering Debt (other than Reinstatement Debt)its Subsidiaries to, the Senior Loans shall be rated by use any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS and at least one such rating shall be equal Net Proceeds received from any Asset Sale to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRSrepay any Junior Indebtedness.
(d) The Borrower will not incur any Funding Shortfall Debt unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Funding Shortfall Debt) the Credit Agreement Projected DSCR commencing on Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes of this clause (i), the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume, if such Funding Shortfall Debt is incurred prior to the Project Completion Date, that all commitments for Funding Shortfall Debt will be fully drawn as of the date on which such Funding Shortfall Debt is incurred and Kroll reaffirms that the rating of the Senior Loans will not, as a result of the incurrence of such Funding Shortfall Debt, be lower than the lower of (A) BBB and (B) the rating of the Senior Loans by Kroll immediately prior to such incurrence of such Supplemental Debt.
(e) The Borrower will not incur any Working Capital Debt unless each of the following conditions is satisfied:
(i) the aggregate principal amount of Working Capital Debt (including the then‑outstanding funded and unfunded commitments in respect of the CD Revolving Loans) may not at any time exceed $3,000,000,000; and
(ii) The condition set forth in Section 2.3(c)(ii) (Working Capital Debt) of the Common Terms Agreement has been satisfied.
Appears in 1 contract
Sources: Senior Secured Loan and Security Agreement (Reed's, Inc.)
Incurrence of Indebtedness. (a) The Borrower will Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, permit, suffer to exist guaranty or otherwise be become directly or become liable with respect toindirectly liable, contingently or otherwise otherwise, with respect to (collectively, “"incur”") any Replacement Debt unless the Borrower shall have demonstrated, by delivery of an updated Base Case Forecast that Indebtedness (after taking into account the incurrence of such Replacement including Acquired Debt) and the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period Company shall not be less than 1.40:1.00issue any Disqualified Stock; provided, however, that for purposes of this clause (ia) the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume, if such Replacement Debt is incurred prior to the Project Completion Date, that all Senior Secured Debt Commitments will be fully drawn, a Specified Rating Reaffirmation shall have occurred, the weighted average life to maturity of the Replacement Debt shall be longer than the weighted average life to maturity of the Senior Secured Debt being replaced, and the final maturity date of the Replacement Debt shall occur after the maturity date of the Senior Secured Debt being replaced.
-------- ------- Company may incur Subordinated Indebtedness (b) The Borrower will not incur any Supplemental Debt (other than Funding Shortfall Debt which shall be governed by Section 7.3(d) below) in an amount greater than $250,000,000 unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Supplemental including Acquired Debt) and issue shares of Disqualified Stock if the Credit Agreement Projected DSCR commencing on Fixed Charge Coverage Ratio for the Initial Principal Payment Date and Company's most recently ended four full fiscal quarters for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes of this clause (i), the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume that all commitments for Supplemental Debt will be fully drawn as of which internal financial statements are available immediately preceding the date on which such Supplemental Debt Subordinated Indebtedness is incurred and Kroll reaffirms that the rating of the Senior Loans will notor such Disqualified Stock is issued would have been at least 2.0 to 1, as a result of the incurrence of such Supplemental Debt, be lower than the lower of (A) BBB and (Bb) the rating of the Senior Loans by Kroll immediately prior to such incurrence of such Supplemental Debt.
(c) The Borrower will not Company may incur any Relevering Debt unless prior to the Project Completion Date, Indebtedness (Aincluding Acquired Debt) such Relevering Debt is Reinstatement Debt or (B) (1) the incurrence of such Relevering Debt would not cause the Debt to Equity Ratio to exceed 75:25 and (2) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), Subordinated Indebtedness if the Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRS, and following Fixed Charge Coverage Ratio for the Project Completion Date, (A) the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Relevering Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and Company's most recently ended four full fiscal quarters for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00 and (B) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), the Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRS.
(d) The Borrower will not incur any Funding Shortfall Debt unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Funding Shortfall Debt) the Credit Agreement Projected DSCR commencing on Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for purposes of this clause (i), the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume, if such Funding Shortfall Debt is incurred prior to the Project Completion Date, that all commitments for Funding Shortfall Debt will be fully drawn as of which internal financial statements are available immediately preceding the date on which such Funding Shortfall Debt additional Indebtedness is incurred would have been at least 2.5 to 1, in each case, determined on a pro forma basis (including --- ----- a pro forma application of the net proceeds therefrom), as if such 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. The foregoing provisions shall not apply to: (i) Indebtedness represented by the Initial Series Bonds; (ii) Plan Indebtedness other than the Initial Series Bonds; (iii) Indebtedness arising under a nuclear fuel financing facility (including, without limitation, any Indebtedness represented by the nuclear fuel financing portion of the New Credit Agreement); provided, however, that an -------- ------- amount equal to the amount of such nuclear fuel financing facility (after deduction for any transaction costs) shall have been applied pursuant to the Plan or, thereafter, the positive difference, if any, between the amount of the nuclear fuel financing facility and Kroll reaffirms the amount previously applied either pursuant to the Plan or to retire Investor Series Bonds shall be used within 45 days of the receipt thereof by the Company to retire Investor Series Bonds then Outstanding through open market purchases of such Bonds; (iv) Indebtedness arising under an accounts receivable financing facility and/or contract payments financing facility; provided, however, that the rating net proceeds (after deduction -------- ------- for any transaction costs) from such facility shall be used within 45 days of the Senior Loans will notreceipt thereof by the Company to retire Investor Series Bonds then Outstanding through open market purchases of such Bonds; (v) any Indebtedness (not otherwise arising under clauses (iii) and (iv) above) issued to a bank or other commercial lender (including, as a result without limitation, Indebtedness represented by the working capital portion of the incurrence New Credit Agreement, if issued); provided, however, that any advances thereunder which shall result at any time -------- ------- in an amount outstanding in excess of $50,000,000 thereunder (after deduction for any transaction costs) shall be used within 45 days of receipt by the Company to retire Investor Series Bonds then Outstanding through open market purchases of such Funding Shortfall DebtBonds); (vi) the incurrence by the Company or any of its Subsidiaries of Indebtedness represented by Capital Lease Obligations, be lower than mortgage financings or purchase money obligations, or extensions, refinancings, renewals or replacements thereof, in each case incurred for the lower purpose of financing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $5,000,000 at any time outstanding; (vii) the incurrence by the Company or any of its Subsidiaries of (A) BBB Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, Indebtedness permitted under clause (ii) above, and (B) any Indebtedness in exchange for, or the rating net proceeds of which are used to extend, refinance, renew, replace, defease or refund, Indebtedness permitted under clauses (iii), (iv) or (v) above so long as the principal amount of such Indebtedness does not exceed the principal amount of the Senior Loans Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded (plus the amount of accrued interest and premiums, if any, thereon and the reasonable expenses incurred in connection therewith); (viii) the incurrence by Kroll immediately prior the Company or any of its Subsidiaries of intercompany Indebtedness between and among the Company and any of its Wholly Owned Subsidiaries; provided, however, that (A) any -------- ------- subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than a Wholly Owned Subsidiary and (B) any sale or other transfer of any such Indebtedness to such a Person that is not either the Company or a Wholly Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of such Supplemental Debt.
Indebtedness by the Company or such Subsidiary, as the case may be; (eix) The Borrower will not incur the incurrence by the Company or any Working Capital Debt unless each of its Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms of the following conditions is satisfied:
Indenture to be outstanding; (ix) Bonds issued from time to time to secure the obligations of the Company under (A) each New Facility Agreement or New Reimbursement Agreement, (B) the aggregate pollution control bonds for which the New Maricopa Reimbursement Agreement and/or New Farmington Reimbursement Agreements provides credit support, or (C) any financing entered into in connection with the extension, refinancing, renewal or refunding of all or part of the Indebtedness under such New Facility Agreement or New Reimbursement Agreement, the Indebtedness in respect of such pollution control bonds for which such New Facility Agreement or New Reimbursement Agreement provides credit support, or the Indebtedness under such extension, refinancing, renewal or refunding; provided, however, that each such Bond shall by its terms -------- ------- provide that it shall be deemed paid in full at such time as the Company's obligations referenced in the above subclauses (A), (B) or (C) of this clause (x) which such Bond is intended to secure, as the case may be, are paid in full and discharged, and that any payment made in respect of such Bond shall be deemed a payment made in respect of such underlying obligation which such Bond is intended to secure; and (xi) Subordinated Indebtedness incurred after the third anniversary of the Initial Issuance Date for the purpose of financing the redemption or repurchase of any Series A Preferred Stock of the Company, provided that (A) the principal amount of Working Capital Debt such Subordinated Indebtedness does not exceed the aggregate redemption or repurchase price of such Series A Preferred Stock (including plus accrued dividends thereon and reasonable expenses incurred in connection therewith), (B) the then‑outstanding funded and unfunded commitments interest rate on such Subordinated Indebtedness shall not exceed the dividend or coupon rate payable in respect of such Series A Preferred Stock, and (C) the CD Revolving Loans) may not at any time exceed $3,000,000,000; and
(ii) The condition set forth maturity date of such Subordinated Indebtedness shall be no sooner than the mandatory redemption date for the Series A Preferred Stock occurring in Section 2.3(c)(ii) (Working Capital Debt) of the Common Terms Agreement has been satisfiedyear 2008.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Borrower Company will not, and will not permit any of the Guarantors to, directly or indirectly, createincur Indebtedness that will constitute First Lien Debt, incur, assume, permit, suffer to exist or otherwise be or become liable with respect to, contingently or otherwise (collectively, “incur”) any Replacement Debt unless the Borrower shall have demonstrated, by delivery of an updated Base Case Forecast that CNTA Ratio (after taking into account giving pro forma effect to any such incurrence and the incurrence of such Replacement Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as application of the end of each Fiscal Quarternet proceeds thereof) through the Notional Amortization Period shall not be less is equal to or greater than 1.40:1.00; provided, that for purposes of this clause (i) the Credit Agreement Projected CFADS used 1.66 to calculate the Credit Agreement Projected DSCR shall assume, if such Replacement Debt is incurred prior to the Project Completion Date, that all Senior Secured Debt Commitments will be fully drawn, a Specified Rating Reaffirmation shall have occurred, the weighted average life to maturity of the Replacement Debt shall be longer than the weighted average life to maturity of the Senior Secured Debt being replaced, and the final maturity date of the Replacement Debt shall occur after the maturity date of the Senior Secured Debt being replaced1.00.
(b) The Borrower will not incur any Supplemental Debt (other than Funding Shortfall Debt which shall be governed by Section 7.3(d) below) in an amount greater than $250,000,000 unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Supplemental Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (as of the end of each Fiscal Quarter) through the Notional Amortization Period shall not be less than 1.40:1.00; provided, that for For purposes of this clause (i)Section 4.07, the Credit Agreement Projected CFADS used to calculate the Credit Agreement Projected DSCR shall assume that all commitments for Supplemental aggregate amount of First Lien Debt outstanding as of any date of determination will be fully calculated as the sum of, without duplication:
(1) the aggregate outstanding principal amount of all Indebtedness (or, 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 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 the date on which such Supplemental Debt is incurred and Kroll reaffirms that the rating of the Senior Loans will notdate, as a result of the incurrence of such Supplemental Debt, be lower than the lower of plus
(A) BBB and (B4) the rating aggregate outstanding principal amount of any First Lien Debt (or, if such Indebtedness is issued with original issue discount, the Senior Loans by Kroll immediately prior to such incurrence then accreted value thereof) outstanding consisting of such Supplemental Debtnotes, bonds, debentures, credit agreements (including any Eligible Commodity Hedge Financing) or similar instruments or agreements.
(c) The Borrower Section 4.07(a) hereof will not incur apply to:
(1) any Relevering Specified Cash Management and Swap Obligations, other Cash Management Obligations that would constitute First Lien Debt unless prior to the Project Completion Date, and any First Lien Hedging Obligations;
(2) (A) such Relevering Indebtedness under the Credit Agreement and Term Loan Agreements outstanding on the date of this Indenture, plus (B) the 2019 Notes, plus (C) the 2020 Notes, plus (D) the 2021 Notes, plus (E) the 2023 Notes, plus (F) the 2022 Notes, plus (G) 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 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 is Reinstatement 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 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 (1i) the incurrence of such Relevering Debt would not cause the Debt to Equity Ratio to exceed 75:25 and (2) upon the incurrence of such Relevering Debt (other than Reinstatement Debt), the Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Kroll, or DBRS and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRS, and following the Project Completion Date, (A) the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Relevering Debt) the Credit Agreement Projected DSCR commencing on the Initial Principal Payment Date and for each rolling four Fiscal Quarter period (in existence as of the end 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 each Fiscal Quarterthe amount of First Lien Debt outstanding pursuant to Section 4.07(b) through the Notional Amortization Period shall not be less than 1.40:1.00 and (B) upon the 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 Relevering Debt letters of credit, similar obligations and commitments;
(other than Reinstatement Debt)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 Senior Loans shall be rated by any one of M▇▇▇▇’▇, S&P, Fitch, Krolllenders thereunder (or their representatives on their behalf) become a party to, or DBRS consent or agree to be bound by the terms and at least one such rating shall be equal to or better than Baa2 by M▇▇▇▇’▇conditions, BBB by S&P, BBB by Fitch, BBB by Kroll, or BBB by DBRSof the Collateral Agency and Intercreditor Agreement.
(d) The Borrower will 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 Funding Shortfall Debt unless the Borrower shall have demonstrated by delivery of an updated Base Case Forecast that (after taking into account the incurrence of such Funding Shortfall Debt) the Credit Agreement Projected DSCR commencing on Initial Principal Payment Date First Lien Hedging Obligations and for each rolling four Fiscal Quarter period (as any extension, renewal or refinancing of the end of each Fiscal QuarterEligible Commodity Hedge Financings existing on the 2017 Notes Issue Date) through the Notional Amortization Period shall not be less than 1.40:1.00; providedpursuant to Section 4.07(a) hereof, that for purposes of this clause (i2) any Permitted Refinancing Indebtedness 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 Credit Agreement Projected CFADS used to calculate foregoing, in each case that will constitute First Lien Debt unless:
(1) The Company and the Credit Agreement Projected DSCR Guarantors shall assumeenter into, if such Funding Shortfall Debt is incurred prior and deliver to the Project Completion DateCollateral Agent, that all commitments for Funding Shortfall Debt will be fully drawn as in the sole discretion of the date on which such Funding Shortfall Debt is incurred and Kroll reaffirms that 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 rating Collateral Agent and, as applicable, consistent with the mortgage modifications delivered in connection with the issuance of the Senior Loans Notes;
(2) The Company or the applicable Guarantor will notcause 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 a result applicable, consistent with the local counsel opinions delivered in connection with the issuance of the incurrence of such Funding Shortfall Debt, be lower than Notes;
(3) The Company or the lower of (A) BBB and (B) applicable Guarantor will cause a title company approved by the rating Collateral Agent to have delivered to the Collateral Agent an endorsement to each title insurance policy then in effect for the benefit of the Senior Loans by Kroll immediately prior Secured Parties, date down(s) or other evidence reasonably satisfactory to the Collateral Agent (which may include a new title insurance policy) (each such incurrence of such Supplemental Debt.
(e) The Borrower will not incur any Working Capital Debt unless delivery, a “Title Datedown Product”), in each of the following conditions is satisfied:
case insuring that (i) the aggregate principal amount of Working Capital Debt (including the then‑outstanding funded and unfunded commitments in respect priority of the CD Revolving LoansLien 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 (and not in connection with) such additional Indebtedness, there has been no change in the condition of title and (iii) there are no intervening liens or encumbrances which may not at any time exceed $3,000,000,000then or thereafter take priority over the Lien of the applicable mortgage(s), in each case other than with respect to Permitted Liens; and
(ii4) The condition set forth in Section 2.3(c)(ii) (Working Capital Debt) Company or the applicable Guarantor will, upon the request of the Common Terms Agreement has been satisfiedCollateral Agent, deliver to the 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 Lien of the mortgages as security for the Notes.
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Sources: Indenture (Calpine Corp)