Incurrence of Indebtedness. The Lessee covenants that it will not incur or assume after the commencement date hereof any Indebtedness without compliance with the following requirements; however, the Lessor may waive any of the requirements contained in this Section upon consideration of a written request from Lessee setting forth the reasons for requesting such a waiver. The Lessee may incur Indebtedness in compliance with one or more of the following: (a) Long-Term Indebtedness if there is delivered to the Lessor: i. An Accountant's Certificate stating, as of the time immediately after the incurrence of such Indebtedness, that the Debt Service Coverage Ratio for the Fiscal Year immediately preceding the date of incurrence of such Indebtedness for which audited financial statements are available, computed as if such proposed Indebtedness had been incurred at the beginning of such period, was not less than 90%; or ii. A Lessee Consultant's Certificate stating, that the Debt Service Coverage Ratio is forecasted to be an amount not less than 100%. Provided that the Lessee Consultant's Certificate required by this paragraph shall not be required if the Lessee furnishes the County a certificate of an Authorized Representative of the Lessee demonstrating that the Debt Service Coverage Ratio for each of two Fiscal Years immediately preceding the date of incurrence of such Indebtedness for which audited financial statements are available, computed as if beginning of such period, has been not less than 125%. The foregoing requirements of subparagraph (a)(ii) of this subsection (1) are subject to the qualification that, if in the opinion of a Health Care Consultant (which, if requested by Lessor, is accompanied by a legal opinion supporting the conclusions of the Health Care Consultant) applicable laws or regulations have prevented or will prevent the Lessee from generating the amount of Net Income Available for Debt Service required to be generated by such requirements as a prerequisite to the incurrence of Indebtedness, the Lessee shall be deemed to have satisfied such requirement if the Lessee will generate the maximum amount of Net Income Available for Debt Service which in the opinion of such Health Care Consultant can reasonably be generated given such laws and regulations, provided that in no event shall the Lessee be deemed to have satisfied such requirement if the Debt Service Coverage Ratio which can be generated is less than 80%; (b) Short-Term Indebtedness provided that immediately after the incurrence of such Indebtedness the aggregate principal amount of all Short-Term Indebtedness outstanding and not incurred pursuant to another paragraph of this Section shall not exceed 10% of Net Revenues for the most recent fiscal year for which audited financial statements are available; (c) Completion Indebtedness in a principal amount not exceeding 10% of the aggregate original face amount of the series of Indebtedness issued to finance the project financed thereby (other than any refunding portions of the Indebtedness) for which Completion Indebtedness is proposed to be issued, without regard to the limitations of paragraph (a) of this Section, provided there is filed with the Lessor (i) a Consulting Architect's Certificate setting forth the amount reasonably expected to be required to complete the project for which the Indebtedness was incurred and stating that the proceeds of the Completion Indebtedness and other moneys available therefore, including estimated investment earnings, will be sufficient to complete the project and (ii) a certificate of an Authorized Representative of the Lessee stating that such Completion Indebtedness is necessary to provide a completed and equipped project of the type and scope contemplated at the time that such series of Indebtedness was originally incurred; (d) Indebtedness incurred to refund any outstanding Indebtedness if prior to incurrence thereof, either (i) the Lessee receives a certificate of an Authorized Representative of the Lessor stating that, taking the proposed Indebtedness and the refunding of the existing Indebtedness into account, the Maximum Annual Debt Service immediately after the issuance of the proposed Indebtedness does not exceed by 5% or more the Maximum Annual Debt Service immediately prior to the issuance of the proposed indebtedness, or (ii) the conditions described in paragraph (a)(i) above are met for the proposed indebtedness; (e) Capital leases, installment purchase obligations and obligations granting purchase money security interests without regard to a n y o f t h e above paragraphs, but only to the extent that the total aggregate payments due under all such leases, installment purchase obligations and purchase money security interest obligations entered into under this paragraph, taken together, do not exceed 20% of Net Revenues in the fiscal year immediately preceding the date of incurrence for which financial statements are available, calculated as if such lease, installment purchase obligation or purchase money security interest obligation had been outstanding during such fiscal year; (f) Indebtedness incurred to persons providing bond reserve credit enhancement and to persons providing credit enhancement for Indebtedness otherwise legally incurred, including without limitation, issuers of letters of credit, surety bonds, guarantees and bond insurance; and (g) Indebtedness incurred, assumed or guaranteed in connection with the receipt of a contribution of real property to be used in connection with the Lessee if (i) the Lessee provides a certificate to the Lessor that incurring, assuming or guaranteeing the payment of such Indebtedness is necessary as a condition precedent to obtaining a contribution of real property to be used in connection with the Lessee, and (ii) the Lessee provides a certificate to the Lessor signed by an independent appraiser selected by the Lessor, with the consent of the Lessee, certifying that the fair market value of such real property, at the time of conveyance to the Lessee is equal to at least 100% of the principal amount of the total Indebtedness incurred, assumed or guaranteed by the Lessee as a condition precedent to such conveyance. (h) Promptly after the incurrence of any additional Indebtedness, the Lessee shall furnish the Lessor with copies of the documentation evidencing such Indebtedness and a certificate of an Authorized Representative of the Lessee to the effect that no event of default then exists under this Lease. (i) Definitions to be used in this Section are as follows:
Appears in 2 contracts
Sources: Hospital Lease, Hospital Lease
Incurrence of Indebtedness. ISSUANCE OF DISQUALIFIED STOCK AND ISSUANCE OF PREFERRED EQUITY INTERESTS OF SUBSIDIARIES. The Lessee covenants that it will Company shall not, and the Company shall not incur permit any of its Restricted Subsidiaries to, directly or assume after the commencement date hereof indirectly, create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable with respect to (collectively, "INCUR") any Indebtedness without compliance with (including Acquired Debt) and the following requirements; howeverCompany shall not, and the Lessor may waive Company shall not permit any of its Restricted Subsidiaries to, issue any Disqualified Stock or any Preferred Equity Interest; PROVIDED, HOWEVER, that notwithstanding the requirements contained in this Section upon consideration foregoing the Company and each of a written request from Lessee setting forth the reasons for requesting such a waiver. The Lessee its Restricted Subsidiaries may incur Indebtedness in compliance with one or more of the following:
(a) Long-Term Indebtedness if there is delivered issue Disqualified Stock if, after giving effect to the Lessor:
i. An Accountant's Certificate stating, as of the time immediately after the incurrence of such Indebtedness, that the Debt Service Coverage Ratio for the Fiscal Year immediately preceding the date of incurrence of such Indebtedness for which audited financial statements are available, computed as if such proposed Indebtedness had been incurred at the beginning of such period, was not less than 90%; or
ii. A Lessee Consultant's Certificate stating, that the Debt Service Coverage Ratio is forecasted to be an amount not less than 100%. Provided that the Lessee Consultant's Certificate required by this paragraph shall not be required if the Lessee furnishes the County a certificate of an Authorized Representative of the Lessee demonstrating that the Debt Service Coverage Ratio for each of two Fiscal Years immediately preceding the date of incurrence of such Indebtedness for which audited financial statements are available, computed as if beginning of such period, has been not less than 125%. The foregoing requirements of subparagraph (a)(ii) of this subsection (1) are subject to the qualification that, if in the opinion of a Health Care Consultant (which, if requested by Lessor, is accompanied by a legal opinion supporting the conclusions of the Health Care Consultant) applicable laws or regulations have prevented or will prevent the Lessee from generating the amount of Net Income Available for Debt Service required to be generated by such requirements as a prerequisite to the incurrence of Indebtedness, the Lessee shall be deemed to have satisfied such requirement if the Lessee will generate the maximum amount of Net Income Available for Debt Service which in the opinion of such Health Care Consultant can reasonably be generated given such laws and regulations, provided that in no event shall the Lessee be deemed to have satisfied such requirement if the Debt Service Coverage Ratio which can be generated is less than 80%;
(b) Short-Term Indebtedness provided that immediately after the incurrence of such Indebtedness or the aggregate principal amount issuance of all Short-Term such Disqualified Stock and the application of the net proceeds thereof, the Indebtedness outstanding to Cash Flow Ratio of the Company would not have exceeded 6.0 to 1. The foregoing limitation will not apply to:
(i) the incurrence of the Deferred Payments and not incurred pursuant to another paragraph letters of this Section shall not exceed 10% of Net Revenues for the most recent fiscal year for which audited financial statements are availablecredit with respect thereto;
(cii) Completion the incurrence of Bank Debt;
(iii) the incurrence of Indebtedness in a principal an aggregate amount not exceeding 10% to exceed $15 million upon a finding by the Company (evidenced by a resolution of the aggregate original face amount Board of the series Directors of Indebtedness issued to finance the project financed thereby (other than any refunding portions of the Indebtedness) for which Completion Indebtedness is proposed to be issued, without regard EchoStar set forth in an Officers' Certificate delivered to the limitations of paragraph (aTrustee) of this Section, provided there is filed with the Lessor (i) a Consulting Architect's Certificate setting forth the amount reasonably expected to be required to complete the project for which the Indebtedness was incurred and stating that the proceeds of the Completion Indebtedness and other moneys available therefore, including estimated investment earnings, will be sufficient to complete the project and (ii) a certificate of an Authorized Representative of the Lessee stating that such Completion Indebtedness is necessary to provide a completed and equipped project of the type and scope contemplated at the time that such series of Indebtedness was originally incurred;
(d) Indebtedness incurred to refund any outstanding Indebtedness if prior to incurrence thereof, either (i) the Lessee receives a certificate of an Authorized Representative of the Lessor stating that, taking the proposed Indebtedness and the refunding of the existing Indebtedness into account, the Maximum Annual Debt Service immediately after the issuance of the proposed Indebtedness does not exceed by 5% or more the Maximum Annual Debt Service immediately prior to the issuance of the proposed indebtedness, or (ii) the conditions described in paragraph (a)(i) above are met for the proposed indebtedness;
(e) Capital leases, installment purchase obligations and obligations granting purchase money security interests without regard to a n y o f t h e above paragraphs, but only to the extent that the total aggregate payments due under all such leases, installment purchase obligations and purchase money security interest obligations entered into under this paragraph, taken together, do not exceed 20% of Net Revenues in the fiscal year immediately preceding the date of incurrence for which financial statements are available, calculated as if such lease, installment purchase obligation or purchase money security interest obligation had been outstanding during such fiscal year;
(f) Indebtedness incurred to persons providing bond reserve credit enhancement and to persons providing credit enhancement for Indebtedness otherwise legally incurred, including without limitation, issuers of letters of credit, surety bonds, guarantees and bond insurance; and
(g) Indebtedness incurred, assumed or guaranteed finance costs in connection with the receipt development, construction, launch or insurance of a contribution of real property to be used in connection with the Lessee if EchoStar III or IV (i) the Lessee provides a certificate to the Lessor or any permitted replacements thereof), PROVIDED that incurring, assuming or guaranteeing the payment of such Indebtedness is necessary as subordinated by its terms in right and priority of payment to the Notes;
(iv) Indebtedness between and among the Company and each of its Restricted Subsidiaries;
(v) Acquired Debt of a condition precedent person incurred prior to obtaining a contribution the date upon which such person was acquired by the Company or any of real property to be used its Subsidiaries (excluding Indebtedness incurred by such entity other than in the ordinary course of its business in connection with with, or in contemplation of, such entity being so acquired) in an aggregate principal amount not to exceed $15 million, PROVIDED that such Indebtedness and the Lesseeholders thereof do not at any time have direct or indirect recourse to any property or assets of the Company or any of its Subsidiaries other than the property and assets of such acquired entity and its Subsidiaries;
(vi) Existing Indebtedness;
(vii) additional Indebtedness in an aggregate amount not to exceed $15 million at any one time outstanding;
(viii) the incurrence of Purchase Money Indebtedness by the Company and any Restricted Subsidiary in an aggregate amount not to exceed $30 million at any one time outstanding; or
(ix) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, substitute or refund Indebtedness referred to in clauses (i), (iii), (v), (vi), (vii) and (iiviii) the Lessee provides a certificate to the Lessor signed by an independent appraiser selected by the Lessorabove ("REFINANCING INDEBTEDNESS"); PROVIDED, with the consent of the LesseeHOWEVER, certifying that the fair market value of such real property, at the time of conveyance to the Lessee is equal to at least 100% of (A) the principal amount of such Refinancing Indebtedness shall not exceed the total Indebtedness incurred, assumed or guaranteed by the Lessee as a condition precedent to such conveyance.
(h) Promptly after the incurrence of any additional Indebtedness, the Lessee shall furnish the Lessor with copies principal amount and accrued interest of the documentation evidencing such Indebtedness so extended, refinanced, renewed, replaced, substituted or refunded; (B) the Refinancing Indebtedness shall have a final maturity later than, and a certificate of an Authorized Representative Weighted Average Life to Maturity equal to or greater than; the final maturity and Weighted Average Life to Maturity of the Lessee Indebtedness being extended, refinanced, renewed, replaced or refunded; and (C) the Refinancing Indebtedness shall be subordinated in right of payment to the effect that no event Notes, if at all, on terms at least as favorable to the Holders of default then exists under this LeaseNotes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced or refunded (a "PERMITTED REFINANCING").
(i) Definitions to be used in this Section are as follows:
Appears in 2 contracts
Sources: Indenture (Echostar DBS Corp), Indenture (Echostar DBS Corp)
Incurrence of Indebtedness. (a) The Lessee covenants that it Issuer will not, and will not incur permit any of its Restricted Subsidiaries to, directly or assume after the commencement date hereof indirectly, Incur any Indebtedness without compliance with the following requirements(including Acquired Debt); provided, however, the Lessor may waive any that all of the requirements contained in this Section upon consideration of a written request from Lessee setting forth the reasons for requesting such a waiver. The Lessee may incur Indebtedness in compliance with one or more of the followingbelow are satisfied:
(ai) Long-Term the Issuer or any of its Restricted Subsidiaries may Incur Indebtedness (including Acquired Debt), if there is delivered to the Lessor:
i. An Accountant's Certificate stating, as of the time immediately after the incurrence of such Indebtedness, that the Debt Service Consolidated Fixed Charge Coverage Ratio for the Fiscal Year Issuer’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is Incurred would have been at least 2.0:1.0, determined on a pro forma basis (including a pro forma application of incurrence of such Indebtedness for which audited financial statements are availablethe net proceeds therefrom), computed as if such proposed the additional Indebtedness had been incurred Incurred at the beginning of such four-quarter period;
(ii) the Issuer or any of its Restricted Subsidiaries may Incur Indebtedness (including Acquired Debt), if immediately following the incurrence of such Intendedness the ratio of (i) Consolidated Indebtedness, to (ii) Consolidated EBITDA, does not exceed 4.0:1.0; and
(iii) no Default or Event of Default shall have occurred and be continuing.
(b) Notwithstanding the foregoing, Section 6.9(a) will not prohibit the Incurrence of any of the following (collectively, “Permitted Debt”):
(i) the Incurrence of Attributable Debt or Indebtedness and obligations represented by Capital Lease Obligations or Purchase Money Obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation, development or improvement of property, plant or equipment used in the business of the Issuer or any of its Restricted Subsidiaries, including all Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred pursuant to this Section 6.9(b)(i), in an aggregate principal amount at any time outstanding not to exceed 3.0% of Consolidated Net Tangible Assets at any time outstanding;
(ii) the Incurrence of Non-Recourse Debt;
(iii) the Incurrence of Existing Indebtedness;
(iv) the Incurrence by the Issuer and the Guarantors of Indebtedness represented by the Notes and the Guarantees, in each case, issued on the Issue Date;
(v) the Incurrence by the Issuer or any Restricted Subsidiary of the Issuer of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease or discharge Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be Incurred under Section 6.9(a) or Sections 6.9(b)(ii), 6.9(b)(iv), or 6.10(b)(xii);
(vi) the Incurrence by the Issuer or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Issuer or any of its Restricted Subsidiaries; provided, however, that:
(A) if the Issuer or any Guarantor is the obligor on such Indebtedness, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of the Issuer, or any Guarantee, in the case of a Guarantor;
(B) such Indebtedness owed to the Issuer or any Guarantor must be unsubordinated obligations, unless the obligor under such Indebtedness is the Issuer or a Guarantor;
(1) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Issuer or a Restricted Subsidiary thereof and (2) any sale or other transfer of any such Indebtedness to a Person that is not either the Issuer or a Restricted Subsidiary thereof, will be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Issuer or such Restricted Subsidiary, as the case may be, that was not less than 90%permitted by this Section 6.9(b)(vi);
(vii) the Guarantee by the Issuer or any of the Guarantors of Indebtedness of the Issuer or any Restricted Subsidiary of the Issuer that was permitted to be Incurred by another provision of this covenant;
(viii) the Incurrence by the Issuer or any of its Restricted Subsidiaries of Hedging Obligations for the purpose of managing risks in the ordinary course of business and not for speculative purposes;
(ix) the Incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance bonds, completion bonds, bid bonds, appeal bonds and surety bonds or other similar bonds or obligations, and any Guarantees or letters of credit functioning as or supporting any of the foregoing, in each case provided by the Issuer or any of its Restricted Subsidiaries in the ordinary course of business;
(x) the Incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business; provided that, upon the drawing of such letters of credit or the Incurrence of such Indebtedness, such obligations are reimbursed within one year following such drawing or Incurrence;
(xi) the Incurrence by the Issuer or any of its Restricted Subsidiaries of Permitted Acquisition Indebtedness;
(xii) any guarantee, indemnity, reimbursement or similar obligation or liability of the Issuer or any Restricted Subsidiary relating to the obligations of any Subsidiary under (1) any lease agreement for a Permitted Business or (2) construction financing and/or tenant improvement allowances for a Permitted Business, in each case in the ordinary and consistent with past practices; or
ii. A Lessee Consultant's Certificate stating(xiii) the Incurrence by the Issuer or any of its Restricted Subsidiaries of additional Indebtedness not otherwise permitted under Section 6.9(b)(i) through (xii) in an aggregate amount at any time outstanding, that including all Permitted Refinancing Indebtedness Incurred to refund, refinance, defease, discharge or replace any Indebtedness Incurred pursuant to this Section 6.9(b)(xii), not to exceed the Debt Service Coverage Ratio is forecasted greater of (A) $15.0 million or (B) the amount equal to be an 0.3 multiplied by the aggregate amount not less than 100%. Provided that of Consolidated EBITDA for the Lessee Consultant's Certificate required by this paragraph shall not be required if the Lessee furnishes the County a certificate of an Authorized Representative most recently completed twelve fiscal months of the Lessee demonstrating that Issuer for which the Debt Service Coverage Ratio for each of two Fiscal Years internal financial statements are available immediately preceding the date on which such Indebtedness is Incurred.
(c) For purposes of incurrence determining compliance with this covenant, in the event that any proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in Section 6.9(b)(i) through (xii) above, or is entitled to be Incurred or issued pursuant to Section 6.9(a), the Issuer will be permitted to divide and classify such item of Indebtedness at the time of its Incurrence in any manner that complies with this Section 6.9. In addition, any Indebtedness originally divided or classified as Incurred pursuant to Section 6.9(b)(i) through (xii) above or pursuant to Section 6.9(a) may later be re-divided or reclassified by the Issuer such that it will be deemed as having been Incurred pursuant to another of such clauses or such paragraph; provided that such re-divided or reclassified Indebtedness for which audited financial statements are available, computed as if beginning could be Incurred pursuant to such new clause or such paragraph at the time of such periodre-division or reclassification. Notwithstanding the foregoing, has been not less than 125%. The foregoing requirements of subparagraph (a)(ii) of this subsection (1) are subject to Indebtedness outstanding on the qualification that, if in the opinion of a Health Care Consultant (which, if requested by Lessor, is accompanied by a legal opinion supporting the conclusions of the Health Care Consultant) applicable laws or regulations have prevented or Issue Date will prevent the Lessee from generating the amount of Net Income Available for Debt Service required to be generated by such requirements as a prerequisite to the incurrence of Indebtedness, the Lessee shall be deemed to have satisfied been Incurred on such requirement if date in reliance on the Lessee will generate exception provided pursuant to Section 6.9(b)(iii). Guarantees of, or obligations in respect of letters of credit relating to, Indebtedness which is otherwise included in the determination of a particular amount of Indebtedness shall not be included in such determination.
(d) Notwithstanding any other provision of this covenant and for the avoidance of doubt, the maximum amount of Net Income Available for Debt Service which in the opinion of such Health Care Consultant can reasonably Indebtedness that may be generated given such laws and regulations, provided that in no event shall the Lessee Incurred pursuant to this covenant will not be deemed to have satisfied such requirement if the Debt Service Coverage Ratio which can be generated is less than 80%;
(b) Short-Term Indebtedness provided that immediately after the incurrence of such Indebtedness the aggregate principal amount of all Short-Term Indebtedness outstanding and not incurred pursuant exceeded with respect to another paragraph of this Section shall not exceed 10% of Net Revenues for the most recent fiscal year for which audited financial statements are available;
(c) Completion Indebtedness in a principal amount not exceeding 10% of the aggregate original face amount of the series of Indebtedness issued to finance the project financed thereby (other than any refunding portions of the Indebtedness) for which Completion Indebtedness is proposed to be issued, without regard to the limitations of paragraph (a) of this Section, provided there is filed with the Lessor (i) a Consulting Architect's Certificate setting forth the amount reasonably expected to be required to complete the project for which the Indebtedness was incurred and stating that the proceeds of the Completion Indebtedness and other moneys available therefore, including estimated investment earnings, will be sufficient to complete the project and (ii) a certificate of an Authorized Representative of the Lessee stating that such Completion Indebtedness is necessary to provide a completed and equipped project of the type and scope contemplated at the time that such series of Indebtedness was originally incurred;
(d) Indebtedness incurred to refund any outstanding Indebtedness if prior to incurrence thereof, either (i) the Lessee receives a certificate of an Authorized Representative of the Lessor stating that, taking the proposed Indebtedness and the refunding of the existing Indebtedness into account, the Maximum Annual Debt Service immediately after the issuance of the proposed Indebtedness does not exceed by 5% or more the Maximum Annual Debt Service immediately prior due solely to the issuance result of fluctuations in the proposed indebtedness, exchange rates of currencies or (ii) increases in the conditions described in paragraph (a)(i) above are met for value of property securing Indebtedness which occur subsequent to the proposed indebtedness;date that such Indebtedness was Incurred as permitted by this covenant.
(e) Capital leasesThe Issuer will not, installment purchase obligations and obligations granting purchase money security interests without regard will not permit any Guarantor to, Incur any Indebtedness that is subordinate in right of payment to a n y o f t h e above paragraphs, but only to any other Indebtedness of the extent that the total aggregate payments due under all Issuer or such leases, installment purchase obligations and purchase money security interest obligations entered into under this paragraph, taken together, do not exceed 20% of Net Revenues in the fiscal year immediately preceding the date of incurrence for which financial statements are available, calculated as if such lease, installment purchase obligation or purchase money security interest obligation had been outstanding during such fiscal year;
(f) Indebtedness incurred to persons providing bond reserve credit enhancement and to persons providing credit enhancement for Indebtedness otherwise legally incurred, including without limitation, issuers of letters of credit, surety bonds, guarantees and bond insurance; and
(g) Indebtedness incurred, assumed or guaranteed in connection with the receipt of a contribution of real property to be used in connection with the Lessee if (i) the Lessee provides a certificate to the Lessor that incurring, assuming or guaranteeing the payment of Guarantor unless such Indebtedness is necessary as a condition precedent to obtaining a contribution subordinate in right of real property to be used in connection with the Lessee, and (ii) the Lessee provides a certificate payment to the Lessor signed by an independent appraiser selected by the Lessor, with the consent of the Lessee, certifying that the fair market value of Notes and such real property, at the time of conveyance Guarantor’s Guarantee to the Lessee is equal to at least 100% of the principal amount of the total Indebtedness incurred, assumed or guaranteed by the Lessee as a condition precedent to such conveyancesame extent.
(h) Promptly after the incurrence of any additional Indebtedness, the Lessee shall furnish the Lessor with copies of the documentation evidencing such Indebtedness and a certificate of an Authorized Representative of the Lessee to the effect that no event of default then exists under this Lease.
(i) Definitions to be used in this Section are as follows:
Appears in 2 contracts
Sources: Trust Indenture, Trust Indenture
Incurrence of Indebtedness. The Lessee covenants that it will not incur For so long as the principal amount outstanding under the Bonds is equal to or assume after the commencement date hereof any Indebtedness without compliance with the following requirements; howeverexceeds U.S.$5,000,000, the Lessor may waive Issuer shall not, and shall procure that its Subsidiaries shall not, at any time permit to create, incur, assume or otherwise become liable in respect of the requirements contained in this Section upon consideration of a written request from Lessee setting forth the reasons for requesting such a waiver. The Lessee may incur Indebtedness in compliance with one any Financial Indebtedness, contingently or more of the followingotherwise, other than:
(a) Long-Term any existing Financial Indebtedness if there is delivered to the Lessor:
i. An Accountant's Certificate stating, as of the time immediately after the incurrence Issuer or any of such Indebtedness, that the Debt Service Coverage Ratio for the Fiscal Year immediately preceding its Subsidiaries incurred on the date of incurrence of such Indebtedness for which audited financial statements are availablethe Bond Agreement and any modification, computed as if such proposed Indebtedness had been incurred at the beginning of such periodextension, was not less than 90%; or
ii. A Lessee Consultant's Certificate statingexchange or refinancing thereof, provided that the Debt Service Coverage Ratio is forecasted to be an principal amount not less than 100%. Provided that the Lessee Consultant's Certificate required by this paragraph thereunder shall not be required if the Lessee furnishes the County a certificate of an Authorized Representative of the Lessee demonstrating that the Debt Service Coverage Ratio for each of two Fiscal Years immediately preceding the date of incurrence of such Indebtedness for which audited financial statements are available, computed as if beginning of such period, has been not less than 125%. The foregoing requirements of subparagraph (a)(ii) of this subsection (1) are subject to the qualification that, if in the opinion of a Health Care Consultant (which, if requested by Lessor, is accompanied by a legal opinion supporting the conclusions of the Health Care Consultant) applicable laws or regulations have prevented or will prevent the Lessee from generating the amount of Net Income Available for Debt Service required to be generated by such requirements as a prerequisite to the incurrence of Indebtedness, the Lessee shall be deemed to have satisfied such requirement if the Lessee will generate the maximum amount of Net Income Available for Debt Service which in the opinion of such Health Care Consultant can reasonably be generated given such laws and regulations, provided that in no event shall the Lessee be deemed to have satisfied such requirement if the Debt Service Coverage Ratio which can be generated is less than 80%increased;
(b) Short-Term Indebtedness provided that immediately after the incurrence by the Issuer or any of such its Subsidiaries of Financial Indebtedness represented by the aggregate principal amount of all Short-Term Indebtedness outstanding and not incurred pursuant to another paragraph of this Section shall not exceed 10% of Net Revenues for the most recent fiscal year for which audited financial statements are availableBonds;
(c) Completion the incurrence by the Issuer or any of its Subsidiaries of Financial Indebtedness in a principal amount not exceeding 10% of the aggregate original face amount of the series of Indebtedness issued to finance the project financed thereby (other than any refunding portions of the Indebtedness) for which Completion Indebtedness is proposed to be issuedexchange for, without regard to the limitations of paragraph (a) of this Section, provided there is filed with the Lessor (i) a Consulting Architect's Certificate setting forth the amount reasonably expected to be required to complete the project for which the Indebtedness was incurred and stating that or the proceeds of the Completion which are used to renew, refund, refinance, replace, exchange, discharge, redeem or refinance in whole or in part, any Financial Indebtedness and other moneys available therefore, including estimated investment earnings, will be sufficient to complete the project and (ii) a certificate of an Authorized Representative of the Lessee stating that such Completion Indebtedness is necessary to provide a completed by the Issuer and equipped project of the type and scope contemplated at the time that such series of Indebtedness was originally incurredits Subsidiaries;
(d) the incurrence by the Issuer or any of its Subsidiaries of any trade or receivables finance Financial Indebtedness incurred to refund any outstanding Indebtedness if prior to incurrence thereof, either (i) the Lessee receives a certificate in respect of an Authorized Representative of the Lessor stating that, taking the proposed Indebtedness and the refunding of the existing Indebtedness into account, the Maximum Annual Debt Service immediately after the issuance of the proposed Indebtedness does not exceed by 5% or more the Maximum Annual Debt Service immediately prior receivables owing to the issuance of Issuer or any Subsidiary and payable or dischargeable in accordance with customary trade terms; provided, however, that such trade terms may include such concessionary trade terms as the proposed indebtedness, Issuer or (ii) any such Subsidiary deems reasonable under the conditions described in paragraph (a)(i) above are met for the proposed indebtednesscircumstances;
(e) Capital leasesthe incurrence by the Issuer or any of its Subsidiaries of Financial Indebtedness under Finance Leases of vehicles, installment purchase obligations and obligations granting purchase money security interests without regard to a n y o f t h e above paragraphsplant, but only to the extent that the total aggregate payments due under all such leases, installment purchase obligations and purchase money security interest obligations entered into under this paragraph, taken together, do not exceed 20% of Net Revenues in the fiscal year immediately preceding the date of incurrence for which financial statements are available, calculated as if such lease, installment purchase obligation equipment or purchase money security interest obligation had been outstanding during such fiscal yearcomputers;
(f) the incurrence by the Issuer or any of its Subsidiaries of hedging obligations not intended for speculative purposes (as determined in good faith by the Issuer);
(g) the incurrence by the Issuer or any of its Subsidiaries of Financial Indebtedness incurred to persons providing bond reserve credit enhancement and to persons providing credit enhancement for Indebtedness otherwise legally incurred, including without limitation, issuers in respect of letters of credit, bank guarantees, bid, performance, appeal, surety and similar bonds, guarantees and bond insurancecompletion guarantees, judgment, advance payment, customs, VAT or similar instruments issued for the account of the Issuer or any of its Subsidiaries in the ordinary course of business
(h) the incurrence by the Issuer or any of its Subsidiaries of Financial Indebtedness in respect of any customary cash management, cash pooling or netting or setting off arrangements, including customary credit card facilities, entered into in the ordinary course of business;
(i) the incurrence by the Issuer or any of its Subsidiaries of Financial Indebtedness arising from the honouring by a bank or other financial institution of a cheque, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within five New York business days; and
(g) Indebtedness incurred, assumed or guaranteed in connection with the receipt of a contribution of real property to be used in connection with the Lessee if (ij) the Lessee provides a certificate to the Lessor that incurring, assuming or guaranteeing the payment of such Indebtedness is necessary as a condition precedent to obtaining a contribution of real property to be used in connection with the Lessee, and (ii) the Lessee provides a certificate to the Lessor signed by an independent appraiser selected incurrence by the Lessor, with Issuer or any of its Subsidiaries of Financial Indebtedness (other than and in addition to Financial Indebtedness permitted under the consent of the Lessee, certifying that the fair market value of such real property, at the time of conveyance to the Lessee is equal to at least 100% of the foregoing paragraphs) in an aggregate principal amount of the total Indebtedness incurred, assumed or guaranteed by the Lessee as a condition precedent to such conveyanceat any time outstanding not exceeding U.S.$1 million.
(h) Promptly after the incurrence of any additional Indebtedness, the Lessee shall furnish the Lessor with copies of the documentation evidencing such Indebtedness and a certificate of an Authorized Representative of the Lessee to the effect that no event of default then exists under this Lease.
(i) Definitions to be used in this Section are as follows:
Appears in 2 contracts
Sources: Bond Agreement (Renalytix PLC), Second Amendment and Restatement Agreement (Renalytix PLC)
Incurrence of Indebtedness. The Lessee covenants that it will MXE shall not incur without the prior consent of Sowood create, incur, assume, or assume after otherwise become or remain liable with respect to liabilities of any kind other than Permitted Indebtedness. “Permitted Indebtedness” shall mean (i) Dominion Indebtedness; (ii) indebtedness to Sowood hereunder and under the commencement date hereof any Indebtedness without compliance with Note; (iii) indebtedness secured under purchase money security interests (including mortgages, conditional sales, capital leases and other title retention or deferred purchase devices) so long as (x) the following requirements; however, the Lessor may waive any of the requirements contained in this Section upon consideration of a written request from Lessee setting forth the reasons for requesting such a waiver. The Lessee may incur Indebtedness in compliance with one or more of the following:
(a) Long-Term Indebtedness if there lien is delivered limited to the Lessor:
i. An Accountant's Certificate statingproperty whose acquisition was funded, as of the time immediately after or refinanced, through the incurrence of such Indebtedness, that the Debt Service Coverage Ratio for the Fiscal Year immediately preceding the date of incurrence of indebtedness; (y) such Indebtedness for which audited financial statements are available, computed as if such proposed Indebtedness had been incurred at the beginning of such period, was not less than 90%; or
ii. A Lessee Consultant's Certificate stating, that the Debt Service Coverage Ratio indebtedness is forecasted to be an amount not less than 100%. Provided that the Lessee Consultant's Certificate required by this paragraph shall not be required if the Lessee furnishes the County a certificate of an Authorized Representative of the Lessee demonstrating that the Debt Service Coverage Ratio for each of two Fiscal Years immediately preceding the date of incurrence of such Indebtedness for which audited financial statements are available, computed as if beginning of such period, has been not less than 125%. The foregoing requirements of subparagraph (a)(ii) of this subsection (1) are subject limited in recourse to the qualification that, if in the opinion of a Health Care Consultant (which, if requested by Lessor, is accompanied by a legal opinion supporting the conclusions of the Health Care Consultant) applicable laws financed property or regulations have prevented or will prevent the Lessee from generating the amount of Net Income Available for Debt Service required to be generated by such requirements as a prerequisite to indebtedness does not exceed the incurrence lesser of Indebtedness, (a) the Lessee shall be deemed to have satisfied such requirement if the Lessee will generate the maximum amount purchase price or construction cost of Net Income Available for Debt Service which in the opinion of such Health Care Consultant can reasonably be generated given such laws said property and regulations, provided that in no event shall the Lessee be deemed to have satisfied such requirement if the Debt Service Coverage Ratio which can be generated is less than 80%;
(b) Short-Term Indebtedness provided that immediately after the incurrence of such Indebtedness the aggregate principal amount of all Short-Term Indebtedness outstanding and not incurred pursuant to another paragraph of this Section shall not exceed 10% of Net Revenues for the most recent fiscal year for which audited financial statements are available;
(c) Completion Indebtedness in a principal amount not exceeding 10% of the aggregate original face amount of the series of Indebtedness issued to finance the project financed thereby (other than any refunding portions of the Indebtedness) for which Completion Indebtedness is proposed to be issued, without regard to the limitations of paragraph (a) of this Section, provided there is filed with the Lessor (i) a Consulting Architect's Certificate setting forth the amount reasonably expected to be required to complete the project for which the Indebtedness was incurred and stating that the proceeds of the Completion Indebtedness and other moneys available therefore, including estimated investment earnings, will be sufficient to complete the project and (ii) a certificate of an Authorized Representative of the Lessee stating that such Completion Indebtedness is necessary to provide a completed and equipped project of the type and scope contemplated at the time that such series of Indebtedness was originally incurred;
(d) Indebtedness incurred to refund any outstanding Indebtedness if prior to incurrence thereof, either (i) the Lessee receives a certificate of an Authorized Representative of the Lessor stating that, taking the proposed Indebtedness and the refunding of the existing Indebtedness into account, the Maximum Annual Debt Service immediately after the issuance of the proposed Indebtedness does not exceed by 5% or more the Maximum Annual Debt Service immediately prior to the issuance of the proposed indebtedness, or (ii) the conditions described in paragraph (a)(i) above are met for the proposed indebtedness;
(e) Capital leases, installment purchase obligations and obligations granting purchase money security interests without regard to a n y o f t h e above paragraphs, but only to the extent that the total aggregate payments due under all such leases, installment purchase obligations and purchase money security interest obligations entered into under this paragraph, taken together, do not exceed 20% of Net Revenues in the fiscal year immediately preceding the date of incurrence for which financial statements are available, calculated as if such lease, installment purchase obligation or purchase money security interest obligation had been outstanding during such fiscal year;
(f) Indebtedness incurred to persons providing bond reserve credit enhancement and to persons providing credit enhancement for Indebtedness otherwise legally incurred, including without limitation, issuers of letters of credit, surety bonds, guarantees and bond insurance; and
(g) Indebtedness incurred, assumed or guaranteed in connection with the receipt of a contribution of real property to be used in connection with the Lessee if (i) the Lessee provides a certificate to the Lessor that incurring, assuming or guaranteeing the payment of such Indebtedness is necessary as a condition precedent to obtaining a contribution of real property to be used in connection with the Lessee, and (ii) the Lessee provides a certificate to the Lessor signed by an independent appraiser selected by the Lessor, with the consent of the Lessee, certifying that the fair market value of such real said property, at ; and (z) the time of conveyance to indebtedness was incurred within 60 days after the Lessee is equal to at least 100% initial acquisition of the principal applicable property; (iv) liabilities incurred in the ordinary course of business secured by carriers, warehouses, mechanics and similar liens, so long as MXE is paying on a timely and current basis all amounts due secured by such liens (other than items which are the subject of a bona fide dispute and as to which appropriate reserves exist); (v) liabilities represented by judgments and awards, so long as the amount of same are fully insured and the total Indebtedness incurredinsurer has acknowledged coverage; (vi) trade payables for goods and services provided to MXE in the ordinary course of business, assumed which are being paid currently; (vii) liabilities incurred under operating leases and contracts in the ordinary course of MXE’s business as to which no default giving rise to acceleration or guaranteed by a notice of acceleration has occurred; (viii) tax liabilities incurred and payable in the Lessee ordinary course of business, as to which all material reports, filings and returns have been timely made or filed (taking into account any extensions) and as to which all material taxes have been paid when due (other than taxes which are the subject of a condition precedent to such conveyance.
bona fide dispute and for which appropriate reserves have been established); and (hix) Promptly after indebtedness permitted under Section 6.02 of the incurrence of any additional IndebtednessFirst Amended and Restated Credit Agreement among MXE, MxEnergy Electric Inc., MxEnergy Holdings Inc. and certain subsidiaries thereof, the Lessee shall furnish lenders from time to time party thereto and Société Générale, as administrative agent (the Lessor with copies of the documentation evidencing such Indebtedness and a certificate of an Authorized Representative of the Lessee to the effect that no event of default then exists under this Lease“SG Credit Agreement).
(i) Definitions to be used in this Section are as follows:”
Appears in 1 contract
Incurrence of Indebtedness. The Lessee covenants that it will Company shall not, and shall not incur permit any of its Restricted Subsidiaries to, directly or assume after the commencement date hereof indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness without compliance with unless the following requirements; howeverCompany's Fixed Charge Coverage Ratio for its four full fiscal quarters ending immediately prior to the date such additional Indebtedness is created, the Lessor may waive any incurred, issued, assumed or guaranteed would have been at least 2.25 to 1 determined on a pro forma basis (including a pro forma application of the requirements contained in this Section upon consideration of a written request from Lessee setting forth the reasons for requesting such a waiver. The Lessee may incur Indebtedness in compliance with one or more of the following:
(a) Long-Term Indebtedness if there is delivered to the Lessor:
i. An Accountant's Certificate stating, as of the time immediately after the incurrence net proceeds of such Indebtedness, that the Debt Service Coverage Ratio for the Fiscal Year immediately preceding the date of incurrence of such Indebtedness for which audited financial statements are available, computed ) as if such proposed the additional Indebtedness had been incurred created, incurred, issued, assumed or guaranteed at the beginning of such four-quarter period, was not less than 90%; or
ii. A Lessee Consultant's Certificate stating, that the Debt Service Coverage Ratio is forecasted to be an amount not less than 100%. Provided that the Lessee Consultant's Certificate required by this paragraph shall not be required if the Lessee furnishes the County a certificate of an Authorized Representative of the Lessee demonstrating that the Debt Service Coverage Ratio for each of two Fiscal Years immediately preceding the date of incurrence of such Indebtedness for which audited financial statements are available, computed as if beginning of such period, has been not less than 125%. The foregoing requirements of subparagraph (a)(ii) of this subsection (1) are subject to the qualification that, if in the opinion of a Health Care Consultant (which, if requested by Lessor, is accompanied by a legal opinion supporting the conclusions of the Health Care Consultant) applicable laws or regulations have prevented or limitations will prevent the Lessee from generating the amount of Net Income Available for Debt Service required to be generated by such requirements as a prerequisite not apply to the incurrence of Indebtedness, (i) Indebtedness pursuant to the Lessee shall be deemed to have satisfied such requirement if the Lessee will generate the maximum amount of Net Income Available for Debt Service which in the opinion of such Health Care Consultant can reasonably be generated given such laws and regulations, Credit Facility (provided that in no event shall the Lessee be deemed to have satisfied such requirement if the Debt Service Coverage Ratio which can be generated is less than 80%;
(b) Short-Term Indebtedness provided that immediately after the incurrence principal amount of such Indebtedness shall not exceed the aggregate principal amount of all Short-Term the commitments under the Credit Facility on the Issue Date PLUS the amount of Indebtedness outstanding under the Credit Facility incurred (A) as additional Indebtedness permitted under clause (viii) of this paragraph and not incurred pursuant to another which reduces the amount of Indebtedness otherwise permitted under said clause (viii), (B) as additional Indebtedness permitted under the first paragraph of this Section shall not exceed 10% 4.9 or (C) as reimbursement obligations with respect to letters of Net Revenues credit permitted under clause (vii) below); (ii) Existing Indebtedness; (iii) Indebtedness represented by the Securities (other than Additional Securities); (iv) Capital Lease Obligations; (v) Indebtedness constituting purchase money obligations for property acquired in the ordinary course of business or other similar financing transactions; (vi) Indebtedness incurred in connection with capital expenditures; (vii) Indebtedness constituting reimbursement obligations with respect to letters of credit, including, without limitation, letters of credit in respect of workers' compensation claims, issued for the most recent fiscal year for which audited financial statements are available;
account of the Company or a Restricted Subsidiary in the ordinary course of business, or other Indebtedness with respect to reimbursement-type obligations regarding workers' compensation claims; (cviii) Completion additional Indebtedness in a an aggregate principal amount not exceeding equal to the greater of (A) $75.0 million in the aggregate at any one time outstanding for the Company and its Restricted Subsidiaries and (B)(1) 10% of the aggregate original face amount Consolidated Net Worth of the series of Indebtedness issued to finance the project financed thereby (other than any refunding portions of the Indebtedness) for which Completion Indebtedness is proposed to be issued, without regard to the limitations of paragraph (a) of this Section, provided there is filed with the Lessor (i) a Consulting Architect's Certificate setting forth the amount reasonably expected to be required to complete the project for which the Indebtedness was incurred and stating that the proceeds of the Completion Indebtedness and other moneys available therefore, including estimated investment earnings, will be sufficient to complete the project and (ii) a certificate of an Authorized Representative of the Lessee stating that such Completion Indebtedness is necessary to provide a completed and equipped project of the type and scope contemplated at the time that such series of Indebtedness was originally incurred;
(d) Indebtedness incurred to refund any outstanding Indebtedness if prior to incurrence thereof, either (i) the Lessee receives a certificate of an Authorized Representative of the Lessor stating that, taking the proposed Indebtedness and the refunding of the existing Indebtedness into account, the Maximum Annual Debt Service immediately after the issuance of the proposed Indebtedness does not exceed by 5% or more the Maximum Annual Debt Service immediately prior to the issuance of the proposed indebtedness, or (ii) the conditions described in paragraph (a)(i) above are met for the proposed indebtedness;
(e) Capital leases, installment purchase obligations and obligations granting purchase money security interests without regard to a n y o f t h e above paragraphs, but only to the extent that the total aggregate payments due under all such leases, installment purchase obligations and purchase money security interest obligations entered into under this paragraph, taken together, do not exceed 20% of Net Revenues in the fiscal year immediately preceding the date of incurrence for which financial statements are available, calculated as if such lease, installment purchase obligation or purchase money security interest obligation had been outstanding during such fiscal year;
(f) Indebtedness incurred to persons providing bond reserve credit enhancement and to persons providing credit enhancement for Indebtedness otherwise legally incurred, including without limitation, issuers of letters of credit, surety bonds, guarantees and bond insurance; and
(g) Indebtedness incurred, assumed or guaranteed in connection with the receipt of a contribution of real property to be used in connection with the Lessee if (i) the Lessee provides a certificate to the Lessor that incurring, assuming or guaranteeing the payment of such Indebtedness is necessary as a condition precedent to obtaining a contribution of real property to be used in connection with the Lessee, and (ii) the Lessee provides a certificate to the Lessor signed by an independent appraiser selected by the Lessor, with the consent of the Lessee, certifying that the fair market value of such real property, Company at the time of conveyance to incurrence by the Lessee is equal to at least 100Company and (2) 10% of the Consolidated Net Worth of any Restricted Subsidiary at the time of incurrence by such Restricted Subsidiary; (ix) Indebtedness created, incurred, issued, assumed or given in exchange for, or the proceeds of which are used to, extend, refinance, renew, replace, substitute or refund any Indebtedness permitted under the Indenture or any Indebtedness issued to so extend, refinance, renew, replace, substitute or refund such Indebtedness, including any additional Indebtedness incurred to pay premiums and fees in connection therewith (the "Refinancing Indebtedness"); PROVIDED, that (A) the principal amount of such Refinancing Indebtedness shall not exceed the total outstanding principal amount of Indebtedness incurred(including unused commitments) so extended, assumed refinanced, renewed, replaced, substituted or guaranteed refunded plus any amounts incurred to pay premiums and fees in connection therewith, (B) in the case of Refinancing Indebtedness for Indebtedness permitted under clause (ii) of this paragraph, the Refinancing Indebtedness shall have an Average Life equal to or greater than the Average Life of the Indebtedness being extended, refinanced, renewed, replaced, substituted or refunded and (C) to the extent such Refinancing Indebtedness refinances Indebtedness subordinated to the Securities, such Refinancing Indebtedness is subordinated to the Securities at least to the same extent as the Indebtedness being extended, refinanced, renewed, replaced, substituted or refunded; and PROVIDED, FURTHER that subclauses (B) and (C) of this clause (ix) will not apply to any refunding or refinancing of any Senior Indebtedness; (x) intercompany Indebtedness incurred in connection with Investments in Unrestricted Subsidiaries; PROVIDED that such Investments are permitted by each of Section 4.7 and Section 4.13 hereof; (xi) Indebtedness of any unconsolidated Subsidiary of the Lessee Company created after the Issue Date; PROVIDED that such Indebtedness is nonrecourse to the Company and its consolidated Restricted Subsidiaries and the Company and its consolidated Restricted Subsidiaries have no obligations with respect to such Indebtedness, (xii) Indebtedness under Currency Agreements and Interest Rate Agreements; PROVIDED that in the case of Currency Agreements which relate to other Indebtedness, such Currency Agreements do not increase the Indebtedness of the Company outstanding other than as a condition precedent result of fluctuations in foreign currency exchange rates; (xiii) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts, which will not be, and will not be deemed to be, inadvertent) drawn against insufficient funds in the ordinary course of business; (xiv) Indebtedness of an entity at the time it is acquired as a Restricted Subsidiary; PROVIDED that such conveyance.
Indebtedness was not incurred or assumed by such entity in connection with or in anticipation of such acquisition; (hxv) Promptly after Indebtedness between the incurrence Company and any Restricted Subsidiary or between Restricted Subsidiaries, (xvi) guarantees by Restricted Subsidiaries of any additional Indebtedness, the Lessee shall furnish the Lessor with copies Indebtedness of the documentation evidencing such Company or any Restricted Subsidiary if the Indebtedness and a certificate of an Authorized Representative of the Lessee to the effect that no event of default then exists so guaranteed is permitted under this Lease.
(i) Definitions to be used in this Section are as follows:Indenture; and
Appears in 1 contract
Incurrence of Indebtedness. The Lessee covenants that it will not incur or assume after the commencement date hereof For so long as any Indebtedness without compliance with the following requirements; howeverCertificate remains outstanding, the Lessor may waive Trust shall not create, assume, incur, suffer to exist or otherwise become or remain liable in respect of any indebtedness. EXHIBIT C TO SERIES TRUST AGREEMENT TRUST CERTIFICATES issued by FINANCIAL INCOME SECURITIES TRUST NFSC 2000-_ FOR [UNDERLYING SECURITIES] POOLED CERTIFICATE (principal amount $__ per certificate) For a Pro Rata Share of All Interest Payments on the [Underlying Securities] and All Principal Payments and Redemption Premium, If Any, Due on the Stated Maturity Date Indicated Below or on any Previous Call for Redemption on [UNDERLYING SECURITIES] Certificate No. 1 Face Amount: $__,000,000 Number of Certificates: __,000,000 CUSIP No.: __________ Stated Maturity Date: ________ __, 20__ CEDE & CO., or registered assigns, is the owner of the requirements contained face amount set forth above of certificates evidencing 100% beneficial ownership of NFSC Trust 2000-_ for [Underlying Securities] (the "Issuer"), whose sole asset consists of $__,000,000 of [Underlying Securities] (the "Underlying Securities"). The sole obligor with respect to such Underlying Securities is the issuer of the Underlying Securities named above (the "Underlying Issuer") or any other entities obligated to make payments to or on behalf of the Underlying Issuer (or their trustees or other applicable fiduciaries) with respect to the Underlying Securities. The Underlying Securities are being held in this Section upon consideration a trust account by [_________________], as Trustee, pursuant to the terms of a written request from Lessee setting forth Trust Agreement dated as of ________ __, 2000 (the reasons for requesting such a waiver. The Lessee may incur Indebtedness in compliance with one or more "Agreement"), including the Standard Terms and Provisions of the following:
(a) Long-Term Indebtedness if there is delivered to the Lessor:
i. An Accountant's Certificate statingSeries Trust Agreement appended thereto and all other exhibits, schedules, appendices, supplements and amendments thereto, between National Financial Securities Corporation, as of Depositor, and the time immediately after Trustee, pursuant to which this and other certificates (the incurrence of such Indebtedness"Certificates"), that evidencing the Debt Service Coverage Ratio for right to receive all interest and principal payments, including the Fiscal Year immediately preceding redemption premiums, if any, but excluding the date of incurrence of such Indebtedness for which audited financial statements Retained Amount (as defined in the Agreement), if any, on the Underlying Securities, are available, computed as if such proposed Indebtedness had been incurred at executed and delivered by the beginning of such period, was not less than 90%; or
iiTrustee. A Lessee Consultant's This Certificate stating, that the Debt Service Coverage Ratio is forecasted to be an amount not less than 100%. Provided that the Lessee Consultant's Certificate required by this paragraph shall not be required if the Lessee furnishes the County a certificate of an Authorized Representative of the Lessee demonstrating that the Debt Service Coverage Ratio for each of two Fiscal Years immediately preceding the date of incurrence of such Indebtedness for which audited financial statements are available, computed as if beginning of such period, has been not less than 125%. The foregoing requirements of subparagraph (a)(ii) of this subsection (1) are subject to the qualification thatprovisions of and is entitled to the benefits of the Agreement, if which may be inspected by the holder hereof at the Designated Office in New York City of the Trustee. The owner of this Certificate, by its acceptance hereof, agrees to be bound by the terms and conditions of the Agreement. Capitalized terms used but not defined herein shall have the meanings set forth in the opinion of a Health Care Consultant Agreement. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (which"DTC"), if requested by LessorTO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, is accompanied by a legal opinion supporting the conclusions EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. The Underlying Securities will be held in an account of the Health Care Consultant) applicable laws or regulations have prevented or Trustee at DTC in book-entry credit form. The Trustee will prevent pay to the Lessee from generating Holder of this Certificate its pro rata share of all amounts received as payments on the amount of Net Income Available for Debt Service Underlying Securities, promptly after receipt, less any amounts required to be generated withheld from or by such requirements as a prerequisite to the incurrence of Indebtedness, the Lessee shall be deemed to have satisfied such requirement if the Lessee will generate the maximum amount of Net Income Available for Debt Service which in the opinion of such Health Care Consultant can reasonably be generated given such laws and regulations, provided that in no event shall the Lessee be deemed to have satisfied such requirement if the Debt Service Coverage Ratio which can be generated is less than 80%;
(b) Short-Term Indebtedness provided that immediately after the incurrence of such Indebtedness the aggregate principal amount of all Short-Term Indebtedness outstanding and not incurred Trustee pursuant to another paragraph of this Section shall not exceed 10% of Net Revenues for the most recent fiscal year for which audited financial statements are available;
(c) Completion Indebtedness applicable law, in a principal amount not exceeding 10% lawful money of the aggregate original face amount United States of the series of Indebtedness issued to finance the project financed thereby (other than any refunding portions of the Indebtedness) for which Completion Indebtedness is proposed to be issuedAmerica, without regard to the limitations of paragraph (a) of this Section, provided there is filed with the Lessor (i) a Consulting Architect's Certificate setting forth if the amount reasonably expected to be required to complete the project for which the Indebtedness was incurred and stating that the proceeds of the Completion Indebtedness and other moneys available therefore, including estimated investment earnings, will be sufficient to complete the project and Holder is The Depository Trust Company (ii"DTC") a certificate of an Authorized Representative of the Lessee stating that such Completion Indebtedness is necessary to provide a completed and equipped project of the type and scope contemplated at the time that such series of Indebtedness was originally incurred;
(d) Indebtedness incurred to refund or its nominee or any outstanding Indebtedness if prior to incurrence successor depository or nominee thereof, either (i) the Lessee receives a certificate by wire transfer of an Authorized Representative of the Lessor stating that, taking the proposed Indebtedness and the refunding of the existing Indebtedness into account, the Maximum Annual Debt Service immediately after the issuance of the proposed Indebtedness does not exceed by 5% or more the Maximum Annual Debt Service immediately prior to the issuance of the proposed indebtedness, or (ii) the conditions described in paragraph (a)(i) above are met for the proposed indebtedness;
(e) Capital leases, installment purchase obligations and obligations granting purchase money security interests without regard to a n y o f t h e above paragraphs, but only to the extent that the total aggregate payments due under all such leases, installment purchase obligations and purchase money security interest obligations entered into under this paragraph, taken together, do not exceed 20% of Net Revenues in the fiscal year immediately preceding the date of incurrence for which financial statements are available, calculated as if such lease, installment purchase obligation or purchase money security interest obligation had been outstanding during such fiscal year;
(f) Indebtedness incurred to persons providing bond reserve credit enhancement and to persons providing credit enhancement for Indebtedness otherwise legally incurred, including without limitation, issuers of letters of credit, surety bonds, guarantees and bond insurance; and
(g) Indebtedness incurred, assumed or guaranteed in connection with the receipt of a contribution of real property to be used in connection with the Lessee if (i) the Lessee provides a certificate to the Lessor that incurring, assuming or guaranteeing the payment of such Indebtedness is necessary as a condition precedent to obtaining a contribution of real property to be used in connection with the Lesseeavailable funds, and (ii) if the Lessee provides a certificate Holder is any other person, by check in immediately available funds sent by first-class mail to the Lessor signed address of the Holder hereof set forth in the Certificate Register. In the event the Trustee receives money or other property in connection with the payment of principal (or actual notice that such moneys or other property will be received), other than in connection with a redemption, prior to the Stated Maturity Date, the Trustee shall promptly give notice, as provided in the Agreement, to the Holder. Such notice shall state that, not later than ninety (90) days after the receipt of such moneys or other property, the Trustee shall distribute such moneys or other property pro rata to the Holders of Certificates. As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register, upon surrender of this Certificate for registration of transfer at the corporate trust office of the Trustee at [________________], duly endorsed by, or accompanied by an independent appraiser selected a written instrument of transfer in form satisfactory to the Trustee duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of the same series having the Stated Maturity Date set forth on the face hereof, of Authorized Denominations of $__ or greater multiples of $__, and having the same aggregate face amount, will be issued to the designated transferee or transferees. Under the Agreement, the Trustee is required, when making any payment to a Holder, to round down such payment to the nearest whole cent. The Certificates are issuable only in registered form in Authorized Denominations. As provided in the Agreement and subject to certain limitations therein set forth, such Certificates are exchangeable for Certificates of the same series, having the same Stated Maturity Date and of a like aggregate face amount, as requested by the LessorHolder surrendering the same. For any such registration of transfer or exchange, the Trustee may require payment of the then applicable service charge and of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Prior to due presentment of this Certificate for registration of transfer, the Trustee and any agent of the Trustee may treat the person in whose name this Certificate is registered as the owner hereof for all purposes, whether or not this Certificate be overdue, and neither the Trustee nor any such agent shall be affected by notice to the contrary. This Certificate shall not be valid or become obligatory for any purpose unless and until duly executed by the Trustee by manual signature. Dated: _______ __, 2000 [__________________], as Trustee By: ____________________________________ Authorized Signatory Authentication This is one of the Certificates referred to in the within-mentioned Trust Agreement. [____________________], as Trustee By:_____________________________________ Authorized Signatory TRANSFER FORM FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto____________________________________________________________________________ the within Certificate, and all rights thereunder, and hereby does irrevocably constitute and appoint__________________________________________________________ ________________________________________________________________________________ attorney to transfer the within Certificate on the books kept for the registration thereof, with full power of substitution in the consent of the Lessee, certifying that the fair market value of such real property, at the time of conveyance to the Lessee is equal to at least 100% of the principal amount of the total Indebtedness incurred, assumed or guaranteed by the Lessee as a condition precedent to such conveyancepremises.
(h) Promptly after the incurrence of any additional Indebtedness, the Lessee shall furnish the Lessor with copies of the documentation evidencing such Indebtedness and a certificate of an Authorized Representative of the Lessee to the effect that no event of default then exists under this Lease.
(i) Definitions to be used in this Section are as follows:
Appears in 1 contract
Sources: Trust Agreement (National Financial Securities Corp)
Incurrence of Indebtedness. The Lessee covenants that it Borrower and Parent Company will not incur or assume after the commencement date hereof any Indebtedness without compliance with the following requirements; however, the Lessor may waive and will not permit any of its Subsidiaries to (i) create, incur, assume or suffer to exist any indebtedness, or issue or suffer to exist any preferred equity interests (exclusive of unsecured trade debt and debt incurred to finance the requirements contained purchase of equipment and/or inventory in the ordinary course of business) whether secured or unsecured; (ii) cancel any debt owing to it in excess of $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other person or entity, except the endorsement of negotiable instruments by the Parent Company or any of its Subsidiaries for deposit or collection or similar transactions in the ordinary course of business or guarantees of indebtedness otherwise permitted to be outstanding pursuant to this Section upon consideration of a written request from Lessee setting forth the reasons for requesting such a waiver. The Lessee may incur Indebtedness in compliance with one or more of the following:
(a) Long-Term Indebtedness if there is delivered to the Lessor:
i. An Accountant's Certificate statingclause; provided, as of the time immediately after the incurrence of such Indebtednesshowever, that the Debt Service Coverage Ratio for the Fiscal Year immediately preceding the date of incurrence of such Indebtedness for which audited financial statements are available, computed as if such proposed Indebtedness had been incurred at the beginning of such period, was not less than 90%; or
ii. A Lessee Consultant's Certificate stating, that the Debt Service Coverage Ratio is forecasted to be an amount not less than 100%. Provided that the Lessee Consultant's Certificate required by this paragraph foregoing limitation shall not be required if apply to (x) the Lessee furnishes the County a certificate of an Authorized Representative of the Lessee demonstrating that the Debt Service Coverage Ratio for each of two Fiscal Years immediately preceding the date of incurrence of such Indebtedness for which audited financial statements are available, computed as if beginning of such period, has been not less than 125%. The foregoing requirements of subparagraph (a)(ii) of this subsection (1) are subject Borrower's indebtedness to the qualification thatPurchasers hereunder, if in (y) indebtedness and preferred equity interests set forth on Schedule 5.13 attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the opinion of a Health Care Consultant Purchasers than the indebtedness or preferred equity interests being refinanced or replaced, (whichz) additional indebtedness incurred, if requested by Lessor, is accompanied by a legal opinion supporting the conclusions of the Health Care Consultant) applicable laws or regulations have prevented or will prevent the Lessee from generating and/or preferred equity issuances issued (with the amount of Net Income Available for Debt Service required such preferred equity interests to equal the greater of the liquidation preference with respect thereto and the maximum fixed repurchase price with respect thereto), not to exceed one million dollars ($1,000,000.00) in the aggregate at any time outstanding, so long as the obligation of the Borrower, the Parent Company and/or any of its Subsidiaries to repay such indebtedness and/or redeem such preferred equity interests incurred or issued, as the case may be, pursuant to this clause (z), shall be generated by such requirements as unsecured and expressly subordinated (in writing in a prerequisite form acceptable to the incurrence of Indebtedness, the Lessee shall be deemed to have satisfied such requirement if the Lessee will generate the maximum amount of Net Income Available for Debt Service which Purchasers in the opinion of such Health Care Consultant can reasonably be generated given such laws and regulations, provided that in no event shall the Lessee be deemed to have satisfied such requirement if the Debt Service Coverage Ratio which can be generated is less than 80%;
(bPurchasers sole discretion) Short-Term Indebtedness provided that immediately after the incurrence of such Indebtedness the aggregate principal amount of all Short-Term Indebtedness outstanding and not incurred pursuant to another paragraph of this Section shall not exceed 10% of Net Revenues for the most recent fiscal year for which audited financial statements are available;
(c) Completion Indebtedness in a principal amount not exceeding 10% of the aggregate original face amount of the series of Indebtedness issued to finance the project financed thereby (other than any refunding portions of the Indebtedness) for which Completion Indebtedness is proposed to be issued, without regard to the limitations of paragraph (a) of Borrower, Parent Company's and its Subsidiaries' obligations to the Purchasers under this Section, provided there is filed with the Lessor (i) a Consulting Architect's Certificate setting forth the amount reasonably expected to be required to complete the project for which the Indebtedness was incurred and stating that the proceeds of the Completion Indebtedness and other moneys available therefore, including estimated investment earnings, will be sufficient to complete the project and (ii) a certificate of an Authorized Representative of the Lessee stating that such Completion Indebtedness is necessary to provide a completed and equipped project of the type and scope contemplated at the time that such series of Indebtedness was originally incurred;
(d) Indebtedness incurred to refund any outstanding Indebtedness if prior to incurrence thereof, either (i) the Lessee receives a certificate of an Authorized Representative of the Lessor stating that, taking the proposed Indebtedness Agreement and the refunding of the existing Indebtedness into accountLoan Documents, the Maximum Annual Debt Service immediately after the issuance of the proposed Indebtedness does not exceed by 5% or more the Maximum Annual Debt Service immediately prior to the issuance of the proposed indebtednessincluding, or (ii) the conditions described in paragraph (a)(i) above are met for the proposed indebtedness;
(e) Capital leases, installment purchase obligations and obligations granting purchase money security interests without regard to a n y o f t h e above paragraphs, but only to the extent that the total aggregate payments due under all such leases, installment purchase obligations and purchase money security interest obligations entered into under this paragraph, taken together, do not exceed 20% of Net Revenues in the fiscal year immediately preceding the date of incurrence for which financial statements are available, calculated as if such lease, installment purchase obligation or purchase money security interest obligation had been outstanding during such fiscal year;
(f) Indebtedness incurred to persons providing bond reserve credit enhancement and to persons providing credit enhancement for Indebtedness otherwise legally incurred, including without limitation, issuers of letters of credit, surety bonds, guarantees and bond insurance; and
(g) Indebtedness incurred, assumed or guaranteed its obligation to payment in connection with the receipt of a contribution of real property to be used in connection with the Lessee if (i) the Lessee provides a certificate to the Lessor that incurring, assuming or guaranteeing the payment of such Indebtedness is necessary as a condition precedent to obtaining a contribution of real property to be used in connection with the Lessee, and (ii) the Lessee provides a certificate to the Lessor signed by an independent appraiser selected by the Lessor, with the consent full of the Lessee, certifying that the fair market value of such real property, at the time of conveyance to the Lessee is equal to at least 100% of the principal amount of the total Indebtedness incurred, assumed or guaranteed by the Lessee as a condition precedent to such conveyanceSecured Notes.
(h) Promptly after the incurrence of any additional Indebtedness, the Lessee shall furnish the Lessor with copies of the documentation evidencing such Indebtedness and a certificate of an Authorized Representative of the Lessee to the effect that no event of default then exists under this Lease.
(i) Definitions to be used in this Section are as follows:
Appears in 1 contract
Incurrence of Indebtedness. The Lessee covenants that it will MXE shall not incur without the prior consent of Lathi create, incur, assume, or assume after otherwise become or remain liable with respect to liabilities of any kind other than Permitted Indebtedness. “Permitted Indebtedness” shall mean (i) Dominion Indebtedness; (ii) indebtedness to Lathi hereunder and under the commencement date hereof any Indebtedness without compliance with Note; (iii) indebtedness secured under purchase money security interests (including mortgages, conditional sales, capital leases and other title retention or deferred purchase devices) so long as (x) the following requirements; however, the Lessor may waive any of the requirements contained in this Section upon consideration of a written request from Lessee setting forth the reasons for requesting such a waiver. The Lessee may incur Indebtedness in compliance with one or more of the following:
(a) Long-Term Indebtedness if there lien is delivered limited to the Lessor:
i. An Accountant's Certificate statingproperty whose acquisition was funded, as of the time immediately after or refinanced, through the incurrence of such Indebtedness, that the Debt Service Coverage Ratio for the Fiscal Year immediately preceding the date of incurrence of indebtedness; (y) such Indebtedness for which audited financial statements are available, computed as if such proposed Indebtedness had been incurred at the beginning of such period, was not less than 90%; or
ii. A Lessee Consultant's Certificate stating, that the Debt Service Coverage Ratio indebtedness is forecasted to be an amount not less than 100%. Provided that the Lessee Consultant's Certificate required by this paragraph shall not be required if the Lessee furnishes the County a certificate of an Authorized Representative of the Lessee demonstrating that the Debt Service Coverage Ratio for each of two Fiscal Years immediately preceding the date of incurrence of such Indebtedness for which audited financial statements are available, computed as if beginning of such period, has been not less than 125%. The foregoing requirements of subparagraph (a)(ii) of this subsection (1) are subject limited in recourse to the qualification that, if in the opinion of a Health Care Consultant (which, if requested by Lessor, is accompanied by a legal opinion supporting the conclusions of the Health Care Consultant) applicable laws financed property or regulations have prevented or will prevent the Lessee from generating the amount of Net Income Available for Debt Service required to be generated by such requirements as a prerequisite to indebtedness does not exceed the incurrence lesser of Indebtedness, (a) the Lessee shall be deemed to have satisfied such requirement if the Lessee will generate the maximum amount purchase price or construction cost of Net Income Available for Debt Service which in the opinion of such Health Care Consultant can reasonably be generated given such laws said property and regulations, provided that in no event shall the Lessee be deemed to have satisfied such requirement if the Debt Service Coverage Ratio which can be generated is less than 80%;
(b) Short-Term Indebtedness provided that immediately after the incurrence of such Indebtedness the aggregate principal amount of all Short-Term Indebtedness outstanding and not incurred pursuant to another paragraph of this Section shall not exceed 10% of Net Revenues for the most recent fiscal year for which audited financial statements are available;
(c) Completion Indebtedness in a principal amount not exceeding 10% of the aggregate original face amount of the series of Indebtedness issued to finance the project financed thereby (other than any refunding portions of the Indebtedness) for which Completion Indebtedness is proposed to be issued, without regard to the limitations of paragraph (a) of this Section, provided there is filed with the Lessor (i) a Consulting Architect's Certificate setting forth the amount reasonably expected to be required to complete the project for which the Indebtedness was incurred and stating that the proceeds of the Completion Indebtedness and other moneys available therefore, including estimated investment earnings, will be sufficient to complete the project and (ii) a certificate of an Authorized Representative of the Lessee stating that such Completion Indebtedness is necessary to provide a completed and equipped project of the type and scope contemplated at the time that such series of Indebtedness was originally incurred;
(d) Indebtedness incurred to refund any outstanding Indebtedness if prior to incurrence thereof, either (i) the Lessee receives a certificate of an Authorized Representative of the Lessor stating that, taking the proposed Indebtedness and the refunding of the existing Indebtedness into account, the Maximum Annual Debt Service immediately after the issuance of the proposed Indebtedness does not exceed by 5% or more the Maximum Annual Debt Service immediately prior to the issuance of the proposed indebtedness, or (ii) the conditions described in paragraph (a)(i) above are met for the proposed indebtedness;
(e) Capital leases, installment purchase obligations and obligations granting purchase money security interests without regard to a n y o f t h e above paragraphs, but only to the extent that the total aggregate payments due under all such leases, installment purchase obligations and purchase money security interest obligations entered into under this paragraph, taken together, do not exceed 20% of Net Revenues in the fiscal year immediately preceding the date of incurrence for which financial statements are available, calculated as if such lease, installment purchase obligation or purchase money security interest obligation had been outstanding during such fiscal year;
(f) Indebtedness incurred to persons providing bond reserve credit enhancement and to persons providing credit enhancement for Indebtedness otherwise legally incurred, including without limitation, issuers of letters of credit, surety bonds, guarantees and bond insurance; and
(g) Indebtedness incurred, assumed or guaranteed in connection with the receipt of a contribution of real property to be used in connection with the Lessee if (i) the Lessee provides a certificate to the Lessor that incurring, assuming or guaranteeing the payment of such Indebtedness is necessary as a condition precedent to obtaining a contribution of real property to be used in connection with the Lessee, and (ii) the Lessee provides a certificate to the Lessor signed by an independent appraiser selected by the Lessor, with the consent of the Lessee, certifying that the fair market value of said property; and (z) the indebtedness was incurred within 60 days after the initial acquisition of the applicable property; (iv) liabilities incurred in the ordinary course of business secured by carriers, warehouses, mechanics and similar liens, so long as MXE is paying on a timely and current basis all amounts due secured by such real propertyliens (other than items which are the subject of a bona fide dispute and as to which appropriate reserves exist); (v) liabilities represented by judgments and awards, at so long as the time amount of conveyance same are fully insured and the insurer has acknowledged coverage; (vi) trade payables for goods and services provided to MXE in the ordinary course of business, which are being paid currently; (vii) liabilities incurred under operating leases and contracts in the ordinary course of MXE’s business as to which no default giving rise to acceleration or a notice of acceleration has occurred; and (viii) tax liabilities incurred and payable in the ordinary course of business, as to which all material reports, filings and returns have been timely made or filed (taking into account any extensions) and as to which all material taxes have been paid when due (other than taxes which are the subject of a bona fide dispute and for which appropriate reserves have been established). MXE shall not consent to any amendment to the Lessee is equal to at least 100% Dominion Agreement without the prior written consent of the principal amount of the total Indebtedness incurredLathi, assumed or guaranteed by the Lessee as a condition precedent to such conveyancewhich consent shall not be unreasonably withheld.
(h) Promptly after the incurrence of any additional Indebtedness, the Lessee shall furnish the Lessor with copies of the documentation evidencing such Indebtedness and a certificate of an Authorized Representative of the Lessee to the effect that no event of default then exists under this Lease.
(i) Definitions to be used in this Section are as follows:
Appears in 1 contract
Incurrence of Indebtedness. The Lessee covenants that it will Company shall not incur create, issue, incur, assume, become liable in respect of or assume after suffer to exist any Indebtedness, except Indebtedness consisting of working capital facilities, letters of credit facilities or reimbursement obligations with respect to letters of credit issued in the commencement date hereof any Indebtedness without compliance with ordinary course of business, including for funding of the following requirements; howeverDebt Service Reserve Account, the Lessor may waive Operating and Major Maintenance Reserve Account, the CapEx and Warranty Reserve Account or for credit support required to be provided in connection with obligations under the Material Project Documents (“Pari Passu LC Facility”); provided that any of the requirements contained in this Section upon consideration incurrence of a written request from Lessee setting forth Pari Passu LC Facility shall be subject to the reasons for requesting such a waiver. The Lessee may incur Indebtedness in compliance with one satisfaction or more waiver of the following:
: (a) Long-Term Indebtedness if there is delivered to the Lessor:
i. An Accountant's Certificate stating, as Delivery of a certificate from an Authorized Officer of the time immediately after Company that (i) that no Default or Event of Default has occurred and is continuing or will result from the incurrence of such IndebtednessPari Passu LC Facility, that (ii) the Debt Service Coverage Ratio for additional Indebtedness is not expect to have a Material Adverse Effect, (iii) as to the Fiscal Year immediately preceding use of the date of incurrence proceeds of such Indebtedness for which audited financial statements are available, computed as if such proposed Indebtedness had been incurred at and (iv) to the beginning of such period, was not less than 90%; or
ii. A Lessee Consultant's Certificate stating, extent that the Debt Service Coverage Ratio is forecasted to be an amount not less than 100%. Provided that the Lessee Consultant's Certificate required by this paragraph shall not be required if the Lessee furnishes the County a certificate of an Authorized Representative of the Lessee demonstrating that the Debt Service Coverage Ratio for each of two Fiscal Years immediately preceding the date of incurrence of such Indebtedness for which audited financial statements are available, computed as if beginning of such period, has been not less than 125%. The foregoing requirements of subparagraph (a)(ii) of this subsection (1) are subject is incurred to the qualification that, if in the opinion of a Health Care Consultant (which, if requested by Lessor, is accompanied by a legal opinion supporting the conclusions of the Health Care Consultant) applicable laws or regulations have prevented or will prevent the Lessee from generating the amount of Net Income Available for Debt Service provide credit support required to be generated by provided in connection with obligations under the Material Project Documents, a certification that such requirements as a prerequisite to the incurrence of Indebtedness, together with other funds available for the Lessee shall be deemed Project, are expected to have satisfied such requirement if comply with obligations under the Lessee will generate the maximum amount of Net Income Available for Debt Service which in the opinion of such Health Care Consultant can reasonably be generated given such laws and regulations, provided that in no event shall the Lessee be deemed to have satisfied such requirement if the Debt Service Coverage Ratio which can be generated is less than 80%;
applicable Material Project Documents; (b) Short-Term Indebtedness provided that immediately after Delivery of any documents and/or instruments evidencing, documenting, securing or otherwise relating to any or all of the incurrence of such Indebtedness obligations relating to the aggregate principal amount of all Short-Term Indebtedness outstanding and not incurred pursuant to another paragraph of this Section shall not exceed 10% of Net Revenues for the most recent fiscal year for which audited financial statements are available;
applicable Pari Passu LC Facility; (c) Completion Indebtedness in a principal amount not exceeding 10% Each of the aggregate original face amount of the series of Indebtedness issued to finance the project financed thereby (other than any refunding portions of the Indebtedness) for which Completion Indebtedness is proposed to be issued, without regard to the limitations of paragraph (a) of this Section, provided there is filed with the Lessor (i) a Consulting Architect's Certificate setting forth the amount reasonably expected to be required to complete the project for which the Indebtedness was incurred and stating that the proceeds of the Completion Indebtedness and other moneys available therefore, including estimated investment earnings, will be sufficient to complete the project and (ii) a certificate of an Authorized Representative of the Lessee stating that such Completion Indebtedness is necessary to provide a completed and equipped project of the type and scope contemplated at the time that such series of Indebtedness was originally incurred;
(d) Indebtedness incurred to refund any outstanding Indebtedness if prior to incurrence thereof, either (i) the Lessee receives a certificate of an Authorized Representative of the Lessor stating that, taking the proposed Indebtedness and the refunding of the existing Indebtedness into account, the Maximum Annual Debt Service immediately Reserve Account, after giving effect to such incurrence, will be funded in an amount equal to the issuance of the proposed Indebtedness does not exceed by 5% or more the Maximum Annual then-applicable Debt Service immediately prior to the issuance of the proposed indebtednessReserve Requirement, or (ii) the conditions described Operating and Major Maintenance Reserve Account will be funded in paragraph (a)(i) above are met for the proposed indebtedness;
(e) Capital leases, installment purchase obligations and obligations granting purchase money security interests without regard to a n y o f t h e above paragraphs, but only an amount equal to the extent that the total aggregate payments due under all such leases, installment purchase obligations and purchase money security interest obligations entered into under this paragraph, taken together, do not exceed 20% of Net Revenues in the fiscal year immediately preceding the date of incurrence for which financial statements are available, calculated as if such lease, installment purchase obligation or purchase money security interest obligation had been outstanding during such fiscal year;
(f) Indebtedness incurred to persons providing bond reserve credit enhancement and to persons providing credit enhancement for Indebtedness otherwise legally incurred, including without limitation, issuers of letters of credit, surety bonds, guarantees and bond insurance; and
(g) Indebtedness incurred, assumed or guaranteed in connection with the receipt of a contribution of real property to be used in connection with the Lessee if (i) the Lessee provides a certificate to the Lessor that incurring, assuming or guaranteeing the payment of such Indebtedness is necessary as a condition precedent to obtaining a contribution of real property to be used in connection with the Lesseethen-applicable Operating Reserve Requirement, and (iiiii) the Lessee provides a certificate CapEx and Warranty Reserve Account will be funded in an amount equal to the Lessor signed by an independent appraiser selected by the Lessor, with the consent of the Lessee, certifying that the fair market value of such real property, at the time of conveyance to the Lessee is equal to at least 100% of the principal then-applicable CapEx Reserve Requirement; and (d) The aggregate amount of the total Indebtedness incurred, assumed or guaranteed by the Lessee as a condition precedent to such conveyancePari Passu LC Facility shall not exceed $5,000,000 at any time.
(h) Promptly after the incurrence of any additional Indebtedness, the Lessee shall furnish the Lessor with copies of the documentation evidencing such Indebtedness and a certificate of an Authorized Representative of the Lessee to the effect that no event of default then exists under this Lease.
(i) Definitions to be used in this Section are as follows:
Appears in 1 contract
Incurrence of Indebtedness. The Lessee covenants that it will Company shall not, and shall not incur permit any of its Restricted Subsidiaries to, directly or assume after the commencement date hereof indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness without compliance with unless the following requirements; however, the Lessor may waive any of the requirements contained in this Section upon consideration of a written request from Lessee setting forth the reasons Company's Debt to Consolidated Cash Flow Ratio for requesting such a waiver. The Lessee may incur Indebtedness in compliance with one or more of the following:
(a) Long-Term Indebtedness if there is delivered its four full fiscal quarters ending immediately prior to the Lessor:
i. An Accountant's Certificate statingdate such additional Indebtedness is created, as incurred, issued, assumed or guaranteed would have been no greater than 6 to 1, and such Indebtedness is not senior in right of payment to the time immediately after Securities; provided that such calculation shall give effect to (A) the incurrence of any Indebtedness (after giving effect to the application of the proceeds thereof) in connection with the simultaneous acquisition of any person, business, property or assets and (B) the Consolidated Cash Flow generated by such acquired person, business, property or assets, giving effect in each case to such incurrence of Indebtedness, that the Debt Service Coverage Ratio for the Fiscal Year immediately preceding the date application of incurrence of such Indebtedness for which audited financial statements are available, computed proceeds and Consolidated Cash Flow as if such proposed Indebtedness acquisition had been incurred occurred at the beginning of such four quarter period, was not less than 90%; or
ii. A Lessee Consultant's Certificate stating, that the Debt Service Coverage Ratio is forecasted to be an amount not less than 100%. Provided that the Lessee Consultant's Certificate required by this paragraph shall not be required if the Lessee furnishes the County a certificate of an Authorized Representative For purposes of the Lessee demonstrating that foregoing provision, cash flow generated by any acquired person, business, property or asset shall be determined on the Debt Service Coverage Ratio for each same basis as the definition of two Fiscal Years Consolidated Cash Flow and shall be based on the actual earnings before interest, taxes, depreciation and amortization of such acquired person, business, property or asset during the immediately preceding four full fiscal quarters plus (y)
(i) the date savings in cost of incurrence goods sold that would have resulted during that period from the effect of using the Company's actual costs for comparable goods and services during that period and (ii) other savings in cost of goods sold or eliminations of selling, general and administrative expenses as determined by the Company in good faith in its consideration of such Indebtedness for which audited financial statements are availableacquisitions and consistent with the Company's experiences in acquisitions of similar businesses minus (z) the incremental expenses that would be included in cost of goods sold and selling, computed as if beginning general and administrative expenses that would have been incurred by the Company in the operation of such acquired person, business, property or assets during such period, has been not less than 125%. The foregoing requirements of subparagraph (a)(ii) of this subsection (1) are subject to the qualification that, if in the opinion of a Health Care Consultant (which, if requested by Lessor, is accompanied by a legal opinion supporting the conclusions of the Health Care Consultant) applicable laws or regulations have prevented or will prevent the Lessee from generating the amount of Net Income Available for Debt Service required to be generated by such requirements as a prerequisite limitations shall not apply to the incurrence of Indebtedness, the Lessee shall be deemed to have satisfied such requirement if the Lessee will generate the maximum amount of Net Income Available for Debt Service which in the opinion of such Health Care Consultant can reasonably be generated given such laws and regulations, provided that in no event shall the Lessee be deemed to have satisfied such requirement if the Debt Service Coverage Ratio which can be generated is less than 80%;
(b) Short-Term Indebtedness provided that immediately after the incurrence of such Indebtedness the aggregate principal amount of all Short-Term Indebtedness outstanding and not incurred pursuant to another paragraph of this Section shall not exceed 10% of Net Revenues for the most recent fiscal year for which audited financial statements are available;
(c) Completion Indebtedness in a principal amount not exceeding 10% of the aggregate original face amount of the series of Indebtedness issued to finance the project financed thereby (other than any refunding portions of the Indebtedness) for which Completion Indebtedness is proposed to be issued, without regard to the limitations of paragraph (a) of this Section, provided there is filed with the Lessor (i) a Consulting Architect's Certificate setting forth the amount reasonably expected to be required to complete the project for which the Indebtedness was incurred and stating that the proceeds of the Completion Indebtedness and other moneys available therefore, including estimated investment earnings, will be sufficient to complete the project and (ii) a certificate of an Authorized Representative of the Lessee stating that such Completion Indebtedness is necessary to provide a completed and equipped project of the type and scope contemplated at the time that such series of Indebtedness was originally incurred;
(d) Indebtedness incurred to refund any outstanding Indebtedness if prior to incurrence thereof, either (i) the Lessee receives a certificate of an Authorized Representative of the Lessor stating that, taking the proposed Indebtedness and the refunding of the existing Indebtedness into account, the Maximum Annual Debt Service immediately after the issuance of the proposed Indebtedness does not exceed by 5% or more the Maximum Annual Debt Service immediately prior pursuant to the issuance of the proposed indebtedness, or Credit Facilities (ii) the conditions described in paragraph (a)(i) above are met for the proposed indebtedness;
(e) Capital leases, installment purchase obligations and obligations granting purchase money security interests without regard to a n y o f t h e above paragraphs, but only to the extent provided that the total aggregate payments due under all such leases, installment purchase obligations and purchase money security interest obligations entered into under this paragraph, taken together, do not exceed 20% of Net Revenues in the fiscal year immediately preceding the date of incurrence for which financial statements are available, calculated as if such lease, installment purchase obligation or purchase money security interest obligation had been outstanding during such fiscal year;
(f) Indebtedness incurred to persons providing bond reserve credit enhancement and to persons providing credit enhancement for Indebtedness otherwise legally incurred, including without limitation, issuers of letters of credit, surety bonds, guarantees and bond insurance; and
(g) Indebtedness incurred, assumed or guaranteed in connection with the receipt of a contribution of real property to be used in connection with the Lessee if (i) the Lessee provides a certificate to the Lessor that incurring, assuming or guaranteeing the payment of such Indebtedness is necessary as a condition precedent to obtaining a contribution of real property to be used in connection with the Lessee, and (ii) the Lessee provides a certificate to the Lessor signed by an independent appraiser selected by the Lessor, with the consent of the Lessee, certifying that the fair market value of such real property, at the time of conveyance to the Lessee is equal to at least 100% of the principal amount of such Indebtedness shall not exceed $1.65 billion, less the total amount of all repayments made in respect of term loans and of all permanent commitment reductions with respect to revolving loans (except to the extent, and only to the extent, that any required repayments of principal in connection with such commitment reduction are not made) made under the Credit Agreements (excluding such repayments and commitment reductions which occur substantially contemporaneously with a refinancing or a refunding thereof)), plus any amounts then available under clause (vi) of this paragraph; (ii) Existing Indebtedness; (iii) Indebtedness incurred, assumed or guaranteed represented by the Lessee as a condition precedent to such conveyance.
(h) Promptly after the incurrence of any additional Indebtedness, the Lessee shall furnish the Lessor with copies of the documentation evidencing such Indebtedness and a certificate of an Authorized Representative of the Lessee to the effect that no event of default then exists under this Lease.
(i) Definitions to be used in this Section are as follows:Outstanding
Appears in 1 contract
Sources: Indenture (Vegeterian Times Inc)
Incurrence of Indebtedness. The Lessee covenants that it will Company shall not, and shall not incur permit any of its Restricted Subsidiaries to, directly or assume after the commencement date hereof indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness without compliance with unless the following requirements; howeverCompany's Fixed Charge Coverage Ratio for its four full fiscal quarters ending immediately prior to the date such additional Indebtedness is created, the Lessor may waive any incurred, issued, assumed or guaranteed would have been at least 2.25 to 1 determined on a pro forma basis (including a pro forma application of the requirements contained in this Section upon consideration of a written request from Lessee setting forth the reasons for requesting such a waiver. The Lessee may incur Indebtedness in compliance with one or more of the following:
(a) Long-Term Indebtedness if there is delivered to the Lessor:
i. An Accountant's Certificate stating, as of the time immediately after the incurrence net proceeds of such Indebtedness, that the Debt Service Coverage Ratio for the Fiscal Year immediately preceding the date of incurrence of such Indebtedness for which audited financial statements are available, computed ) as if such proposed the additional Indebtedness had been incurred created, incurred, issued, assumed or guaranteed at the beginning of such four-quarter period, was not less than 90%; or
ii. A Lessee Consultant's Certificate stating, that the Debt Service Coverage Ratio is forecasted to be an amount not less than 100%. Provided that the Lessee Consultant's Certificate required by this paragraph shall not be required if the Lessee furnishes the County a certificate of an Authorized Representative of the Lessee demonstrating that the Debt Service Coverage Ratio for each of two Fiscal Years immediately preceding the date of incurrence of such Indebtedness for which audited financial statements are available, computed as if beginning of such period, has been not less than 125%. The foregoing requirements of subparagraph (a)(ii) of this subsection (1) are subject to the qualification that, if in the opinion of a Health Care Consultant (which, if requested by Lessor, is accompanied by a legal opinion supporting the conclusions of the Health Care Consultant) applicable laws or regulations have prevented or limitations will prevent the Lessee from generating the amount of Net Income Available for Debt Service required to be generated by such requirements as a prerequisite not apply to the incurrence of Indebtedness, (i) Indebtedness pursuant to the Lessee shall be deemed to have satisfied such requirement if the Lessee will generate the maximum amount of Net Income Available for Debt Service which in the opinion of such Health Care Consultant can reasonably be generated given such laws and regulations, Credit Facility (provided that in no event shall the Lessee be deemed to have satisfied such requirement if the Debt Service Coverage Ratio which can be generated is less than 80%;
(b) Short-Term Indebtedness provided that immediately after the incurrence principal amount of such Indebtedness shall not exceed the aggregate principal amount of all Short-Term the commitments under the Credit Facility on the Issue Date PLUS the amount of Indebtedness outstanding under the Credit Facility incurred (A) as additional Indebtedness permitted under clause (viii) of this paragraph and not incurred pursuant to another which reduces the amount of Indebtedness otherwise permitted under said clause (viii), (B) as additional Indebtedness permitted under the first paragraph of this Section shall not exceed 10% 4.9 or (C) as reimbursement obligations with respect to letters of Net Revenues credit permitted under clause (vii) below); (ii) Existing Indebtedness; (iii) Indebtedness represented by the Securities; (iv) Capital Lease Obligations; (v) Indebtedness constituting purchase money obligations for property acquired in the ordinary course of business or other similar financing transactions; (vi) Indebtedness incurred in connection with capital expenditures; (vii) Indebtedness constituting reimbursement obligations with respect to letters of credit, including, without limitation, letters of credit in respect of workers' compensation claims, issued for the most recent fiscal year for which audited financial statements are available;
account of the Company or a Restricted Subsidiary in the ordinary course of business, or other Indebtedness with respect to reimbursement-type obligations regarding workers' compensation claims; (cviii) Completion additional Indebtedness in a an aggregate principal amount not exceeding equal to the greater of (A) $75.0 million in the aggregate at any one time outstanding for the Company and its Restricted Subsidiaries and (B)(1) 10% of the aggregate original face amount Consolidated Net Worth of the series of Indebtedness issued to finance the project financed thereby (other than any refunding portions of the Indebtedness) for which Completion Indebtedness is proposed to be issued, without regard to the limitations of paragraph (a) of this Section, provided there is filed with the Lessor (i) a Consulting Architect's Certificate setting forth the amount reasonably expected to be required to complete the project for which the Indebtedness was incurred and stating that the proceeds of the Completion Indebtedness and other moneys available therefore, including estimated investment earnings, will be sufficient to complete the project and (ii) a certificate of an Authorized Representative of the Lessee stating that such Completion Indebtedness is necessary to provide a completed and equipped project of the type and scope contemplated at the time that such series of Indebtedness was originally incurred;
(d) Indebtedness incurred to refund any outstanding Indebtedness if prior to incurrence thereof, either (i) the Lessee receives a certificate of an Authorized Representative of the Lessor stating that, taking the proposed Indebtedness and the refunding of the existing Indebtedness into account, the Maximum Annual Debt Service immediately after the issuance of the proposed Indebtedness does not exceed by 5% or more the Maximum Annual Debt Service immediately prior to the issuance of the proposed indebtedness, or (ii) the conditions described in paragraph (a)(i) above are met for the proposed indebtedness;
(e) Capital leases, installment purchase obligations and obligations granting purchase money security interests without regard to a n y o f t h e above paragraphs, but only to the extent that the total aggregate payments due under all such leases, installment purchase obligations and purchase money security interest obligations entered into under this paragraph, taken together, do not exceed 20% of Net Revenues in the fiscal year immediately preceding the date of incurrence for which financial statements are available, calculated as if such lease, installment purchase obligation or purchase money security interest obligation had been outstanding during such fiscal year;
(f) Indebtedness incurred to persons providing bond reserve credit enhancement and to persons providing credit enhancement for Indebtedness otherwise legally incurred, including without limitation, issuers of letters of credit, surety bonds, guarantees and bond insurance; and
(g) Indebtedness incurred, assumed or guaranteed in connection with the receipt of a contribution of real property to be used in connection with the Lessee if (i) the Lessee provides a certificate to the Lessor that incurring, assuming or guaranteeing the payment of such Indebtedness is necessary as a condition precedent to obtaining a contribution of real property to be used in connection with the Lessee, and (ii) the Lessee provides a certificate to the Lessor signed by an independent appraiser selected by the Lessor, with the consent of the Lessee, certifying that the fair market value of such real property, Company at the time of conveyance to incurrence by the Lessee is equal to at least 100Company and (2) 10% of the Consolidated Net Worth of any Restricted Subsidiary at the time of incurrence by such Restricted Subsidiary; (ix) Indebtedness created, incurred, issued, assumed or given in exchange for, or the proceeds of which are used to, extend, refinance, renew, replace, substitute or refund any Indebtedness permitted under the Indenture or any Indebtedness issued to so extend, refinance, renew, replace, substitute or refund such Indebtedness, including any additional Indebtedness incurred to pay premiums and fees in connection therewith (the "Refinancing Indebtedness"); PROVIDED, that (A) the principal amount of such Refinancing Indebtedness shall not exceed the total outstanding principal amount of Indebtedness incurred(including unused commitments) so extended, assumed refinanced, renewed, replaced, substituted or guaranteed refunded plus any amounts incurred to pay premiums and fees in connection therewith, (B) in the case of Refinancing Indebtedness for Indebtedness permitted under clause (ii) of this paragraph, the Refinancing Indebtedness shall have an Average Life equal to or greater than the Average Life of the Indebtedness being extended, refinanced, renewed, replaced, substituted or refunded and (C) to the extent such Refinancing Indebtedness refinances Indebtedness subordinated to the Securities, such Refinancing Indebtedness is subordinated to the Securities at least to the same extent as the Indebtedness being extended, refinanced, renewed, replaced, substituted or refunded; and PROVIDED FURTHER that subclauses (B) and (C) of this clause (ix) will not apply to any refunding or refinancing of any Senior Indebtedness; (x) intercompany Indebtedness incurred in connection with Investments in Unrestricted Subsidiaries; PROVIDED that such Investments are permitted by each of Section 4.7 and Section 4.13 hereof; (xi) Indebtedness of any unconsolidated Subsidiary of the Lessee Company created after the Issue Date; PROVIDED that such Indebtedness is nonrecourse to the Company and its consolidated Restricted Subsidiaries and the Company and its consolidated Restricted Subsidiaries have no obligations with respect to such Indebtedness, (xii) Indebtedness under Currency Agreements and Interest Rate Agreements; PROVIDED that in the case of Currency Agreements which relate to other Indebtedness, such Currency Agreements do not increase the Indebtedness of the Company outstanding other than as a condition precedent result of fluctuations in foreign currency exchange rates; (xiii) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts, which will not be, and will not be deemed to be, inadvertent) drawn against insufficient funds in the ordinary course of business; (xiv) Indebtedness of an entity at the time it is acquired as a Restricted Subsidiary; PROVIDED that such conveyance.
Indebtedness was not incurred or assumed by such entity in connection with or in anticipation of such acquisition; (hxv) Promptly after Indebtedness between the incurrence Company and any Restricted Subsidiary or between Restricted Subsidiaries, (xvi) guarantees by Restricted Subsidiaries of any additional Indebtedness, the Lessee shall furnish the Lessor with copies Indebtedness of the documentation evidencing such Company or any Restricted Subsidiary if the Indebtedness so guaranteed is permitted under this Indenture; and a certificate (xvii) the Company's Obligations arising from the repurchase, redemption or other acquisitions of an Authorized Representative of the Lessee Equity Interests from management investors to the effect that no event of default then exists under this Leaseextent permitted by Section 4.7.
(i) Definitions to be used in this Section are as follows:
Appears in 1 contract
Incurrence of Indebtedness. The Lessee covenants that it will Company shall not, and shall not incur permit any of its Restricted Subsidiaries to, directly or assume after the commencement date hereof indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness without compliance with unless the following requirements; however, the Lessor may waive any of the requirements contained in this Section upon consideration of a written request from Lessee setting forth the reasons Company's Debt to Consolidated Cash Flow Ratio for requesting such a waiver. The Lessee may incur Indebtedness in compliance with one or more of the following:
(a) Long-Term Indebtedness if there is delivered its four full fiscal quarters ending immediately prior to the Lessor:
i. An Accountant's Certificate statingdate such additional Indebtedness is created, as incurred, issued, assumed or guaranteed would have been no greater than 6 to 1, and such Indebtedness is not senior in right of payment to the time immediately after Securities; PROVIDED that such calculation shall give effect to (A) the incurrence of any Indebtedness (after giving effect to the application of the proceeds thereof) in connection with the simultaneous acquisition of any person, business, property or assets and (B) the Consolidated Cash Flow generated by such acquired person, business, property or assets, giving effect in each case to such incurrence of Indebtedness, that the Debt Service Coverage Ratio for the Fiscal Year immediately preceding the date application of incurrence of such Indebtedness for which audited financial statements are available, computed proceeds and Consolidated Cash Flow as if such proposed Indebtedness acquisition had been incurred occurred at the beginning of such four quarter period, was not less than 90%; or
ii. A Lessee Consultant's Certificate stating, that the Debt Service Coverage Ratio is forecasted to be an amount not less than 100%. Provided that the Lessee Consultant's Certificate required by this paragraph shall not be required if the Lessee furnishes the County a certificate of an Authorized Representative For purposes of the Lessee demonstrating that foregoing provision, cash flow generated by any acquired person, business, property or asset shall be determined on the Debt Service Coverage Ratio for each same basis as the definition of two Fiscal Years Consolidated Cash Flow and shall be based on the actual earnings before interest, taxes, depreciation and amortization of such acquired person, business, property or asset during the immediately preceding four full fiscal quarters PLUS (y)
(i) the date savings in cost of incurrence goods sold that would have resulted during that period from the effect of using the Company's actual costs for comparable goods and services during that period and (ii) other savings in cost of goods sold or eliminations of selling, general and administrative expenses as determined by the Company in good faith in its consideration of such Indebtedness for which audited financial statements are availableacquisitions and consistent with the Company's experiences in acquisitions of similar businesses MINUS (z) the incremental expenses that would be included in cost of goods sold and selling, computed as if beginning general and administrative expenses that would have been incurred by the Company in the operation of such acquired person, business, property or assets during such period, has been not less than 125%. The foregoing requirements of subparagraph (a)(ii) of this subsection (1) are subject to the qualification that, if in the opinion of a Health Care Consultant (which, if requested by Lessor, is accompanied by a legal opinion supporting the conclusions of the Health Care Consultant) applicable laws or regulations have prevented or will prevent the Lessee from generating the amount of Net Income Available for Debt Service required to be generated by such requirements as a prerequisite limitations shall not apply to the incurrence of Indebtedness, the Lessee shall be deemed to have satisfied such requirement if the Lessee will generate the maximum amount of Net Income Available for Debt Service which in the opinion of such Health Care Consultant can reasonably be generated given such laws and regulations, provided that in no event shall the Lessee be deemed to have satisfied such requirement if the Debt Service Coverage Ratio which can be generated is less than 80%;
(b) Short-Term Indebtedness provided that immediately after the incurrence of such Indebtedness the aggregate principal amount of all Short-Term Indebtedness outstanding and not incurred pursuant to another paragraph of this Section shall not exceed 10% of Net Revenues for the most recent fiscal year for which audited financial statements are available;
(c) Completion Indebtedness in a principal amount not exceeding 10% of the aggregate original face amount of the series of Indebtedness issued to finance the project financed thereby (other than any refunding portions of the Indebtedness) for which Completion Indebtedness is proposed to be issued, without regard to the limitations of paragraph (a) of this Section, provided there is filed with the Lessor (i) a Consulting Architect's Certificate setting forth the amount reasonably expected to be required to complete the project for which the Indebtedness was incurred and stating that the proceeds of the Completion Indebtedness and other moneys available therefore, including estimated investment earnings, will be sufficient to complete the project and (ii) a certificate of an Authorized Representative of the Lessee stating that such Completion Indebtedness is necessary to provide a completed and equipped project of the type and scope contemplated at the time that such series of Indebtedness was originally incurred;
(d) Indebtedness incurred to refund any outstanding Indebtedness if prior to incurrence thereof, either (i) the Lessee receives a certificate of an Authorized Representative of the Lessor stating that, taking the proposed Indebtedness and the refunding of the existing Indebtedness into account, the Maximum Annual Debt Service immediately after the issuance of the proposed Indebtedness does not exceed by 5% or more the Maximum Annual Debt Service immediately prior pursuant to the issuance of the proposed indebtedness, or Credit Facilities (ii) the conditions described in paragraph (a)(i) above are met for the proposed indebtedness;
(e) Capital leases, installment purchase obligations and obligations granting purchase money security interests without regard to a n y o f t h e above paragraphs, but only to the extent provided that the total aggregate payments due under all such leases, installment purchase obligations and purchase money security interest obligations entered into under this paragraph, taken together, do not exceed 20% of Net Revenues in the fiscal year immediately preceding the date of incurrence for which financial statements are available, calculated as if such lease, installment purchase obligation or purchase money security interest obligation had been outstanding during such fiscal year;
(f) Indebtedness incurred to persons providing bond reserve credit enhancement and to persons providing credit enhancement for Indebtedness otherwise legally incurred, including without limitation, issuers of letters of credit, surety bonds, guarantees and bond insurance; and
(g) Indebtedness incurred, assumed or guaranteed in connection with the receipt of a contribution of real property to be used in connection with the Lessee if (i) the Lessee provides a certificate to the Lessor that incurring, assuming or guaranteeing the payment of such Indebtedness is necessary as a condition precedent to obtaining a contribution of real property to be used in connection with the Lessee, and (ii) the Lessee provides a certificate to the Lessor signed by an independent appraiser selected by the Lessor, with the consent of the Lessee, certifying that the fair market value of such real property, at the time of conveyance to the Lessee is equal to at least 100% of the principal amount of the total Indebtedness incurred, assumed or guaranteed by the Lessee as a condition precedent to such conveyance.
(h) Promptly after the incurrence of any additional Indebtedness, the Lessee shall furnish the Lessor with copies of the documentation evidencing such Indebtedness shall not exceed $1.65 billion, less the amount of all repayments made in respect of term loans and a certificate of an Authorized Representative of the Lessee all permanent commitment reductions with respect to revolving loans (except to the effect extent, and only to the extent, that no event any required repayments of default then exists principal in connection with such commitment reduction are not made) made under this Lease.
the Credit Facilities (i) Definitions to be used in this Section are as follows:excluding such repayments and commitment reductions which occur substantially
Appears in 1 contract
Sources: Indenture (Vegeterian Times Inc)
Incurrence of Indebtedness. The Lessee covenants that it will not For as long as the Note remains outstanding, the Company shall not, directly or indirectly, incur or guarantee, assume after the commencement date hereof or suffer to exist any Indebtedness without compliance with the following requirements; however, the Lessor may waive any of the requirements contained in this Section upon consideration of a written request first obtaining approval from Lessee setting forth the reasons for requesting such a waiver. The Lessee may incur Indebtedness in compliance with one or more of the following:
(a) Long-Term Indebtedness if there is delivered to the Lessor:
i. An Accountant's Certificate stating, as of the time immediately after the incurrence of such Indebtedness, that the Debt Service Coverage Ratio for the Fiscal Year immediately preceding the date of incurrence of such Indebtedness for Lender which audited financial statements are available, computed as if such proposed Indebtedness had been incurred at the beginning of such period, was not less than 90%; or
ii. A Lessee Consultant's Certificate stating, that the Debt Service Coverage Ratio is forecasted to be an amount not less than 100%. Provided that the Lessee Consultant's Certificate required by this paragraph shall will not be required if the Lessee furnishes the County a certificate of an Authorized Representative of the Lessee demonstrating that the Debt Service Coverage Ratio for each of two Fiscal Years immediately preceding the date of incurrence of such Indebtedness for which audited financial statements are available, computed as if beginning of such period, has been not less than 125%. The foregoing requirements of subparagraph (a)(ii) of this subsection (1) are subject to the qualification that, if in the opinion of a Health Care Consultant (which, if requested by Lessor, is accompanied by a legal opinion supporting the conclusions of the Health Care Consultant) applicable laws or regulations have prevented or will prevent the Lessee from generating the amount of Net Income Available for Debt Service required to be generated by such requirements as a prerequisite to the incurrence of Indebtedness, the Lessee shall be deemed to have satisfied such requirement if the Lessee will generate the maximum amount of Net Income Available for Debt Service which in the opinion of such Health Care Consultant can reasonably be generated given such laws and regulations, provided that in no event shall the Lessee be deemed to have satisfied such requirement if the Debt Service Coverage Ratio which can be generated is less than 80%;
(b) Short-Term Indebtedness provided that immediately after the incurrence of such Indebtedness the aggregate principal amount of all Short-Term Indebtedness outstanding and not incurred pursuant to another paragraph of this Section shall not exceed 10% of Net Revenues for the most recent fiscal year for which audited financial statements are available;
(c) Completion Indebtedness in a principal amount not exceeding 10% of the aggregate original face amount of the series of Indebtedness issued to finance the project financed thereby withheld (other than any refunding portions of the Indebtedness) for which Completion Indebtedness is proposed to be issued, without regard to the limitations of paragraph (a) of this Section, provided there is filed with the Lessor (i) a Consulting Architect's Certificate setting forth the amount reasonably expected to be required to complete the project for which the Indebtedness was incurred and stating that evidenced by the proceeds of the Completion Indebtedness and other moneys available therefore, including estimated investment earnings, will be sufficient to complete the project Note and (ii) a certificate other the Indebtedness set forth on Schedule 7(b) attached hereto (the “Permitted Indebtedness”)). “Indebtedness” of an Authorized Representative any person means, without duplication (A) all indebtedness for borrowed money, (B) all obligations issued, undertaken or assumed as the deferred purchase price of the Lessee stating that such Completion Indebtedness is necessary to provide a completed and equipped project of the type and scope contemplated at the time that such series of Indebtedness was originally incurred;
property or services (d) Indebtedness incurred to refund any outstanding Indebtedness if prior to incurrence thereofincluding, either (i) the Lessee receives a certificate of an Authorized Representative of the Lessor stating that, taking the proposed Indebtedness and the refunding of the existing Indebtedness into account, the Maximum Annual Debt Service immediately after the issuance of the proposed Indebtedness does not exceed by 5% or more the Maximum Annual Debt Service immediately prior to the issuance of the proposed indebtedness, or (ii) the conditions described in paragraph (a)(i) above are met for the proposed indebtedness;
(e) Capital leases, installment purchase obligations and obligations granting purchase money security interests without regard to a n y o f t h e above paragraphs, but only to the extent that the total aggregate payments due under all such leases, installment purchase obligations and purchase money security interest obligations entered into under this paragraph, taken together, do not exceed 20% of Net Revenues in the fiscal year immediately preceding the date of incurrence for which financial statements are available, calculated as if such lease, installment purchase obligation or purchase money security interest obligation had been outstanding during such fiscal year;
(f) Indebtedness incurred to persons providing bond reserve credit enhancement and to persons providing credit enhancement for Indebtedness otherwise legally incurred, including without limitation, issuers “capital leases” in accordance with GAAP) (other than trade payables entered into in the ordinary course of business consistent with past practice), (C) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (D) all obligations evidenced by notes, bonds, guarantees and bond insurance; and
(g) Indebtedness incurreddebentures or similar instruments, assumed or guaranteed including obligations so evidenced incurred in connection with the receipt acquisition of a contribution property, assets or businesses, (E) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to any property or assets acquired with the proceeds of real property such indebtedness (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to be used repossession or sale of such property), (F) all monetary obligations under any leasing or similar arrangement which, in connection with GAAP, consistently applied for the Lessee if periods covered thereby, is classified as a capital lease, (iG) all indebtedness referred to in clauses (A) through (F) above secured by (or for which the Lessee provides a certificate holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any lien upon or in any property or assets (including accounts and contract rights) owned by any person, even though the Lessor that incurring, assuming person which owns such assets or guaranteeing property has not assumed or become liable for the payment of such Indebtedness is necessary as a condition precedent to obtaining a contribution of real property to be used in connection with the Lesseeindebtedness, and (iiH) the Lessee provides a certificate to the Lessor signed by an independent appraiser selected by the Lessor, with the consent all contingent obligations in respect of indebtedness or obligations of others of the Lessee, certifying that the fair market value of such real property, at the time of conveyance kinds referred to the Lessee is equal to at least 100% of the principal amount of the total Indebtedness incurred, assumed or guaranteed by the Lessee as a condition precedent to such conveyancein clauses (A) through (G) above.
(h) Promptly after the incurrence of any additional Indebtedness, the Lessee shall furnish the Lessor with copies of the documentation evidencing such Indebtedness and a certificate of an Authorized Representative of the Lessee to the effect that no event of default then exists under this Lease.
(i) Definitions to be used in this Section are as follows:
Appears in 1 contract
Sources: Securities Purchase Agreement (Equus Total Return, Inc.)
Incurrence of Indebtedness. The Lessee covenants that it will not incur or assume after the commencement date hereof For so long as any Indebtedness without compliance with the following requirements; howeverCertificate remains outstanding, the Lessor may waive Trust shall not create, assume, incur, suffer to exist or otherwise become or remain liable in respect of any indebtedness. EXHIBIT C TO SERIES TRUST AGREEMENT TRUST CERTIFICATES issued by NFSC TRUST 2000-__ FOR [UNDERLYING SECURITIES] POOLED CERTIFICATE (principal amount $__ per certificate) For a Pro Rata Share of All Interest Payments on the [Underlying Securities] and All Principal Payments and Redemption Premium, If Any, Due on the Stated Maturity Date Indicated Below or on any Previous Call for Redemption on [UNDERLYING SECURIITES] Certificate No. 1 Face Amount: $__,000,000 Number of Certificates: __,000,000 CUSIP No.: __________ Stated Maturity Date: ________ __, 20__ CEDE & CO., or registered assigns, is the owner of the requirements contained face amount set forth above of certificates evidencing 100% beneficial ownership of NFSC Trust 2000-__ for [Underlying Securities] (the "Issuer"), whose sole asset consists of $__,000,000 of [Underlying Securities] (the "Underlying Securities"). The sole obligor with respect to such Underlying Securities is the issuer of the Underlying Securities named above (the "Underlying Issuer") or any other entities obligated to make payments to or on behalf of the Underlying Issuer (or their trustees or other applicable fiduciaries) with respect to the Underlying Securities. The Underlying Securities are being held in this Section upon consideration a trust account by [_________________], as Trustee, pursuant to the terms of a written request from Lessee setting forth Trust Agreement dated as of ________ __, 2000 (the reasons for requesting such a waiver. The Lessee may incur Indebtedness in compliance with one or more "Agreement"), including the Standard Terms and Provisions of the following:
(a) Long-Term Indebtedness if there is delivered to the Lessor:
i. An Accountant's Certificate statingSeries Trust Agreement appended thereto and all other exhibits, schedules, appendices, supplements and amendments thereto, between National Financial Securities Corporation, as of Depositor, and the time immediately after Trustee, pursuant to which this and other certificates (the incurrence of such Indebtedness"Certificates"), that evidencing the Debt Service Coverage Ratio for right to receive all interest and principal payments, including the Fiscal Year immediately preceding redemption premiums, if any, but excluding the date of incurrence of such Indebtedness for which audited financial statements Retained Amount (as defined in the Agreement), if any, on the Underlying Securities, are available, computed as if such proposed Indebtedness had been incurred at executed and delivered by the beginning of such period, was not less than 90%; or
iiTrustee. A Lessee Consultant's This Certificate stating, that the Debt Service Coverage Ratio is forecasted to be an amount not less than 100%. Provided that the Lessee Consultant's Certificate required by this paragraph shall not be required if the Lessee furnishes the County a certificate of an Authorized Representative of the Lessee demonstrating that the Debt Service Coverage Ratio for each of two Fiscal Years immediately preceding the date of incurrence of such Indebtedness for which audited financial statements are available, computed as if beginning of such period, has been not less than 125%. The foregoing requirements of subparagraph (a)(ii) of this subsection (1) are subject to the qualification thatprovisions of and is entitled to the benefits of the Agreement, if which may be inspected by the holder hereof at the Designated Office in New York City of the Trustee. The owner of this Certificate, by its acceptance hereof, agrees to be bound by the terms and conditions of the Agreement. Capitalized terms used but not defined herein shall have the meanings set forth in the opinion of a Health Care Consultant Agreement. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (which"DTC"), if requested by LessorTO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, is accompanied by a legal opinion supporting the conclusions EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. The Underlying Securities will be held in an account of the Health Care Consultant) applicable laws or regulations have prevented or Trustee at DTC in book-entry credit form. The Trustee will prevent pay to the Lessee from generating Holder of this Certificate its pro rata share of all amounts received as payments on the amount of Net Income Available for Debt Service Underlying Securities, promptly after receipt, less any amounts required to be generated withheld from or by such requirements as a prerequisite to the incurrence of Indebtedness, the Lessee shall be deemed to have satisfied such requirement if the Lessee will generate the maximum amount of Net Income Available for Debt Service which in the opinion of such Health Care Consultant can reasonably be generated given such laws and regulations, provided that in no event shall the Lessee be deemed to have satisfied such requirement if the Debt Service Coverage Ratio which can be generated is less than 80%;
(b) Short-Term Indebtedness provided that immediately after the incurrence of such Indebtedness the aggregate principal amount of all Short-Term Indebtedness outstanding and not incurred Trustee pursuant to another paragraph of this Section shall not exceed 10% of Net Revenues for the most recent fiscal year for which audited financial statements are available;
(c) Completion Indebtedness applicable law, in a principal amount not exceeding 10% lawful money of the aggregate original face amount United States of the series of Indebtedness issued to finance the project financed thereby (other than any refunding portions of the Indebtedness) for which Completion Indebtedness is proposed to be issuedAmerica, without regard to the limitations of paragraph (a) of this Section, provided there is filed with the Lessor (i) a Consulting Architect's Certificate setting forth if the amount reasonably expected to be required to complete the project for which the Indebtedness was incurred and stating that the proceeds of the Completion Indebtedness and other moneys available therefore, including estimated investment earnings, will be sufficient to complete the project and Holder is The Depository Trust Company (ii"DTC") a certificate of an Authorized Representative of the Lessee stating that such Completion Indebtedness is necessary to provide a completed and equipped project of the type and scope contemplated at the time that such series of Indebtedness was originally incurred;
(d) Indebtedness incurred to refund or its nominee or any outstanding Indebtedness if prior to incurrence successor depository or nominee thereof, either (i) the Lessee receives a certificate by wire transfer of an Authorized Representative of the Lessor stating that, taking the proposed Indebtedness and the refunding of the existing Indebtedness into account, the Maximum Annual Debt Service immediately after the issuance of the proposed Indebtedness does not exceed by 5% or more the Maximum Annual Debt Service immediately prior to the issuance of the proposed indebtedness, or (ii) the conditions described in paragraph (a)(i) above are met for the proposed indebtedness;
(e) Capital leases, installment purchase obligations and obligations granting purchase money security interests without regard to a n y o f t h e above paragraphs, but only to the extent that the total aggregate payments due under all such leases, installment purchase obligations and purchase money security interest obligations entered into under this paragraph, taken together, do not exceed 20% of Net Revenues in the fiscal year immediately preceding the date of incurrence for which financial statements are available, calculated as if such lease, installment purchase obligation or purchase money security interest obligation had been outstanding during such fiscal year;
(f) Indebtedness incurred to persons providing bond reserve credit enhancement and to persons providing credit enhancement for Indebtedness otherwise legally incurred, including without limitation, issuers of letters of credit, surety bonds, guarantees and bond insurance; and
(g) Indebtedness incurred, assumed or guaranteed in connection with the receipt of a contribution of real property to be used in connection with the Lessee if (i) the Lessee provides a certificate to the Lessor that incurring, assuming or guaranteeing the payment of such Indebtedness is necessary as a condition precedent to obtaining a contribution of real property to be used in connection with the Lesseeavailable funds, and (ii) if the Lessee provides a certificate Holder is any other person, by check in immediately available funds sent by first-class mail to the Lessor signed address of the Holder hereof set forth in the Certificate Register. In the event the Trustee receives money or other property in connection with the payment of principal (or actual notice that such moneys or other property will be received), other than in connection with a redemption, prior to the Stated Maturity Date, the Trustee shall promptly give notice, as provided in the Agreement, to the Holder. Such notice shall state that, not later than ninety (90) days after the receipt of such moneys or other property, the Trustee shall distribute such moneys or other property pro rata to the Holders of Certificates. As provided in the Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register, upon surrender of this Certificate for registration of transfer at the corporate trust office of the Trustee at [________________], duly endorsed by, or accompanied by an independent appraiser selected a written instrument of transfer in form satisfactory to the Trustee duly executed by, the Holder hereof or such Holder's attorney duly authorized in writing, and thereupon one or more new Certificates of the same series having the Stated Maturity Date set forth on the face hereof, of Authorized Denominations of $__ or greater multiples of $__, and having the same aggregate face amount, will be issued to the designated transferee or transferees. Under the Agreement, the Trustee is required, when making any payment to a Holder, to round down such payment to the nearest whole cent. The Certificates are issuable only in registered form in Authorized Denominations. As provided in the Agreement and subject to certain limitations therein set forth, such Certificates are exchangeable for Certificates of the same series, having the same Stated Maturity Date and of a like aggregate face amount, as requested by the LessorHolder surrendering the same. For any such registration of transfer or exchange, the Trustee may require payment of the then applicable service charge and of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Prior to due presentment of this Certificate for registration of transfer, the Trustee and any agent of the Trustee may treat the person in whose name this Certificate is registered as the owner hereof for all purposes, whether or not this Certificate be overdue, and neither the Trustee nor any such agent shall be affected by notice to the contrary. This Certificate shall not be valid or become obligatory for any purpose unless and until duly executed by the Trustee by manual signature. Dated: _______ __, 2000 [__________________], as Trustee By: _______________________________________ Authorized Signatory Authentication This is one of the Certificates referred to in the within-mentioned Trust Agreement. [____________________], as Trustee By: _______________________________________ Authorized Signatory TRANSFER FORM FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto__________________________________________________________________________ the within Certificate, and all rights thereunder, and hereby does irrevocably constitute and appoint_________________________________________________________ ________________________________________________________________________________ attorney to transfer the within Certificate on the books kept for the registration thereof, with full power of substitution in the consent of the Lessee, certifying that the fair market value of such real property, at the time of conveyance to the Lessee is equal to at least 100% of the principal amount of the total Indebtedness incurred, assumed or guaranteed by the Lessee as a condition precedent to such conveyancepremises.
(h) Promptly after the incurrence of any additional Indebtedness, the Lessee shall furnish the Lessor with copies of the documentation evidencing such Indebtedness and a certificate of an Authorized Representative of the Lessee to the effect that no event of default then exists under this Lease.
(i) Definitions to be used in this Section are as follows:
Appears in 1 contract
Sources: Trust Agreement (National Financial Securities Corp)
Incurrence of Indebtedness. (a) The Lessee covenants that it Issuer will not, and will not incur permit any of its Subsidiaries to, directly or assume after the commencement date hereof indirectly, (i) create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (in any such case, “incur”) any Indebtedness without compliance with (including Acquired Indebtedness).
(b) Section 5.11(a) will not prohibit the following requirements; however, the Lessor may waive incurrence of any of the requirements contained following items of Indebtedness (collectively, “Permitted Debt”):
(i) the incurrence by the Issuer of Indebtedness represented by the Debentures and the incurrence by any Guarantor of a Debenture Guarantee;
(ii) the incurrence by the Issuer or any Subsidiary of Lease Liabilities in the ordinary course of business in respect of office or retail space;
(iii) the incurrence by the Issuer or any Subsidiary of Purchase Money Obligations incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation, development or improvement of property, plant or equipment used in the business of the Issuer or any of its Subsidiaries;
(iv) the incurrence by the Issuer or any of its Subsidiaries of the Existing Indebtedness;
(v) the incurrence by the Issuer or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness between or among the Issuer and any of its Subsidiaries) that was incurred in reliance on Section 5.11(a) or clauses (i), (ii), (iv), (v), (xiii), or this clause (v) of this Section upon consideration 5.11(b);
(vi) the incurrence by the Issuer or any of the Guarantors of intercompany Indebtedness between or among the Issuer and any of the Guarantors;
(vii) the incurrence by the Issuer or any Subsidiary of Hedging Obligations in the ordinary course of business and not for speculative purposes;
(viii) the guarantee by the Issuer or any Guarantor of Indebtedness of the Issuer or a Subsidiary that was permitted to be incurred by another provision of this Section 5.11; provided that if the Indebtedness being guaranteed is subordinated in right of payment to or pari passu in right of payment with the Debentures or any of the Debenture Guarantees, then the guarantee must be subordinated in right of payment or pari passu in right of payment to at least the same extent as the Indebtedness guaranteed;
(ix) Indebtedness of the Issuer or any Subsidiary arising (A) from the honouring by a bank or other financial institution of a written request cheque, draft or similar instrument drawn against insufficient funds in the ordinary course of business or (B) in connection with endorsement of instruments for deposit in the ordinary course of business;
(x) the incurrence by the Issuer or any of its Subsidiaries of Cash Management Obligations in the ordinary course of business;
(xi) to the extent constituting Indebtedness, any obligation arising from Lessee setting forth agreements of the reasons Issuer or any of its Subsidiaries providing for requesting such indemnification, adjustment of purchase price, earn-outs or similar obligations, in each case, incurred or assumed in connection with the disposition or acquisition of any business, assets or Capital Stock of a waiver. The Lessee may incur Subsidiary in a transaction permitted by the Indenture; and
(xii) the incurrence by the Issuer of Senior Debt; provided that Indebtedness in respect of Senior Debt or any Permitted Refinancing Indebtedness in respect of the Senior Debt shall not exceed _______________________.
(c) For purposes of determining compliance with one or more of the followingthis Section 5.11:
(ai) Long-Term the outstanding principal amount of any particular Indebtedness if there is delivered to the Lessor:
i. An Accountant's Certificate statingshall be counted only once, as and any obligations arising under any guarantee, Lien, letter of the time immediately after the incurrence of such Indebtedness, that the Debt Service Coverage Ratio for the Fiscal Year immediately preceding the date of incurrence of credit or similar instrument supporting such Indebtedness for which audited financial statements are availableshall not be double counted; and
(ii) the accrual of interest, computed as if such proposed the accretion or amortization of original issue discount, the payment of interest on any Indebtedness had been incurred at in the beginning form of such periodadditional Indebtedness with the same terms, was will not less than 90%; or
ii. A Lessee Consultant's Certificate stating, that the Debt Service Coverage Ratio is forecasted be deemed to be an amount not less than 100%. Provided that the Lessee Consultant's Certificate required by this paragraph shall not be required if the Lessee furnishes the County a certificate of an Authorized Representative of the Lessee demonstrating that the Debt Service Coverage Ratio for each of two Fiscal Years immediately preceding the date of incurrence of such Indebtedness for which audited financial statements are available, computed as if beginning of such period, has been not less than 125%. The foregoing requirements of subparagraph (a)(ii) purposes of this subsection Section 5.11.
(1d) are subject to the qualification that, if in the opinion For purposes of a Health Care Consultant (which, if requested by Lessor, is accompanied by a legal opinion supporting the conclusions of the Health Care Consultant) applicable laws determining compliance with any United States dollar or regulations have prevented or will prevent the Lessee from generating the amount of Net Income Available for Debt Service required to be generated by such requirements as a prerequisite to other currency-denominated restriction on the incurrence of Indebtedness, the Lessee United States dollar or other currency-equivalent amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred (or first committed, in the case of revolving credit Indebtedness); provided that if such Indebtedness is incurred or issued to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable United States dollar or other currency-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such United States dollar or other currency-denominated restriction shall be deemed not to have satisfied been exceeded so long as the amount of such requirement if refinancing Indebtedness does not exceed the Lessee will generate amount of such Indebtedness being refinanced. Notwithstanding any other provision of this Section 5.11, the maximum amount of Net Income Available for Debt Service which in the opinion of such Health Care Consultant can reasonably Indebtedness that may be generated given such laws and regulations, provided that in no event incurred or issued pursuant to this Section 5.11 shall the Lessee not be deemed to have satisfied such requirement if be exceeded solely as a result of fluctuations in the Debt Service Coverage Ratio which can be generated is less than 80%;
(b) Short-Term Indebtedness provided that immediately after the incurrence exchange rate of such Indebtedness the aggregate currencies. The principal amount of all Short-Term Indebtedness outstanding and not any Permitted Refinancing Indebtedness, if incurred pursuant to another paragraph of this Section shall not exceed 10% of Net Revenues for the most recent fiscal year for which audited financial statements are available;
(c) Completion Indebtedness in a principal amount not exceeding 10% of different currency from the aggregate original face amount of Indebtedness being refinanced, shall be calculated based on the series of Indebtedness issued currency exchange rate applicable to finance the project financed thereby (other than any refunding portions of the Indebtedness) for currencies in which Completion such Permitted Refinancing Indebtedness is proposed to be issued, without regard to denominated that is in effect on the limitations date of paragraph (a) of this Section, provided there is filed with the Lessor (i) a Consulting Architect's Certificate setting forth the amount reasonably expected to be required to complete the project for which the Indebtedness was incurred and stating that the proceeds of the Completion Indebtedness and other moneys available therefore, including estimated investment earnings, will be sufficient to complete the project and (ii) a certificate of an Authorized Representative of the Lessee stating that such Completion Indebtedness is necessary to provide a completed and equipped project of the type and scope contemplated at the time that such series of Indebtedness was originally incurred;
(d) Indebtedness incurred to refund any outstanding Indebtedness if prior to incurrence thereof, either (i) the Lessee receives a certificate of an Authorized Representative of the Lessor stating that, taking the proposed Indebtedness and the refunding of the existing Indebtedness into account, the Maximum Annual Debt Service immediately after the issuance of the proposed Indebtedness does not exceed by 5% or more the Maximum Annual Debt Service immediately prior to the issuance of the proposed indebtedness, or (ii) the conditions described in paragraph (a)(i) above are met for the proposed indebtedness;refinancing.
(e) Capital leases, installment purchase obligations and obligations granting purchase money security interests without regard Neither the Issuer nor any Subsidiary will incur any additional Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to a n y o f t h e above paragraphs, but only any other Indebtedness of such Person unless such additional Indebtedness is also contractually subordinated in right of payment to the extent Debentures or the applicable Debenture Guarantee, as the case may be, on substantially identical terms; provided, however, that the total aggregate payments due under all such leases, installment purchase obligations and purchase money security interest obligations entered into under this paragraph, taken together, do not exceed 20% of Net Revenues in the fiscal year immediately preceding the date of incurrence for which financial statements are available, calculated as if such lease, installment purchase obligation or purchase money security interest obligation had been outstanding during such fiscal year;
(f) no Indebtedness incurred to persons providing bond reserve credit enhancement and to persons providing credit enhancement for Indebtedness otherwise legally incurred, including without limitation, issuers of letters of credit, surety bonds, guarantees and bond insurance; and
(g) Indebtedness incurred, assumed or guaranteed in connection with the receipt of a contribution of real property will be deemed to be used contractually subordinated in connection with the Lessee if (i) the Lessee provides right of payment to any other Indebtedness solely by virtue of being unsecured or by virtue of being secured on a certificate to the Lessor that incurring, assuming or guaranteeing the payment of such Indebtedness is necessary as a condition precedent to obtaining a contribution of real property to be used in connection with the Lessee, and (ii) the Lessee provides a certificate to the Lessor signed by an independent appraiser selected by the Lessor, with the consent of the Lessee, certifying that the fair market value of such real property, at the time of conveyance to the Lessee is equal to at least 100% of the principal amount of the total Indebtedness incurred, assumed or guaranteed by the Lessee as a condition precedent to such conveyancejunior priority basis.
(h) Promptly after the incurrence of any additional Indebtedness, the Lessee shall furnish the Lessor with copies of the documentation evidencing such Indebtedness and a certificate of an Authorized Representative of the Lessee to the effect that no event of default then exists under this Lease.
(i) Definitions to be used in this Section are as follows:
Appears in 1 contract
Sources: Trust Indenture (High Tide Inc.)
Incurrence of Indebtedness. (a) The Lessee covenants that it will Company shall not, and shall not incur cause or assume after the commencement date hereof any Indebtedness without compliance with the following requirements; however, the Lessor may waive permit any of the requirements contained Subsidiaries to, directly or indirectly, create, incur, assume, issue, guarantee or in this Section upon consideration of a written request from Lessee setting forth the reasons any manner become liable for requesting such a waiver. The Lessee may incur Indebtedness or with respect to, contingently or otherwise (in compliance with one or more of the following:
(a) Long-Term Indebtedness if there is delivered each case, to the Lessor:
i. An Accountant's Certificate stating, as of the time immediately after the incurrence of such Indebtedness, that the Debt Service Coverage Ratio for the Fiscal Year immediately preceding the date of incurrence of such Indebtedness for which audited financial statements are available, computed as if such proposed Indebtedness had been incurred at the beginning of such period, was not less than 90%; or
ii. A Lessee Consultant's Certificate stating, that the Debt Service Coverage Ratio is forecasted to be an amount not less than 100%. Provided that the Lessee Consultant's Certificate required by this paragraph shall not be required if the Lessee furnishes the County a certificate of an Authorized Representative of the Lessee demonstrating that the Debt Service Coverage Ratio for each of two Fiscal Years immediately preceding the date of incurrence of such Indebtedness for which audited financial statements are available, computed as if beginning of such period, has been not less than 125%. The foregoing requirements of subparagraph (a)(ii) of this subsection (1) are subject to the qualification that, if in the opinion of a Health Care Consultant (which, if requested by Lessor, is accompanied by a legal opinion supporting the conclusions of the Health Care Consultant) applicable laws or regulations have prevented or will prevent the Lessee from generating the amount of Net Income Available for Debt Service required to be generated by such requirements as a prerequisite to the incurrence of Indebtedness"incur"), the Lessee shall be deemed to have satisfied such requirement if the Lessee will generate the maximum amount of Net Income Available payment of, any Indebtedness (including any Acquisition Indebtedness) except for Debt Service which in the opinion of such Health Care Consultant can reasonably be generated given such laws and regulations, provided that in no event shall the Lessee be deemed to have satisfied such requirement if the Debt Service Coverage Ratio which can be generated is less than 80%;Permitted Indebtedness.
(b) Short-Term Indebtedness provided that immediately after Notwithstanding the incurrence of such Indebtedness foregoing, the aggregate principal amount of all Short-Term Indebtedness outstanding and not incurred pursuant Company and, to another paragraph of this Section shall not exceed 10% of Net Revenues for the most recent fiscal year for which audited financial statements are available;
(c) Completion Indebtedness in a principal amount not exceeding 10% extent specifically set forth below, the Subsidiaries of the aggregate original face amount Company may incur each and all of the series of Indebtedness issued to finance the project financed thereby following (other than any refunding portions of the collectively, "Permitted Indebtedness) for which Completion Indebtedness is proposed to be issued, without regard to the limitations of paragraph (a) of this Section, provided there is filed with the Lessor "):
(i) a Consulting Architect's Certificate setting forth the amount reasonably expected to be required to complete the project for which the Indebtedness was incurred and stating that the proceeds of the Completion Senior Indebtedness and other moneys available thereforeSubordinated Indebtedness, including estimated investment earnings, will be sufficient to complete the project and (ii) a certificate of an Authorized Representative of the Lessee stating except that such Completion Indebtedness is necessary to provide a completed and equipped project of the type and scope contemplated at the time that such series of Indebtedness was originally incurred;
(d) any Acquisition Indebtedness incurred to refund any outstanding Indebtedness if prior to incurrence thereof, either (i) the Lessee receives a certificate of an Authorized Representative of the Lessor stating that, taking the proposed Indebtedness and the refunding of the existing Indebtedness into account, the Maximum Annual Debt Service immediately after the issuance of the proposed Indebtedness does not exceed by 5% or more the Maximum Annual Debt Service immediately prior to the issuance of the proposed indebtedness, or (ii) the conditions described in paragraph (a)(i) above are met for the proposed indebtedness;
(e) Capital leases, installment purchase obligations and obligations granting purchase money security interests without regard to a n y o f t h e above paragraphs, but only to the extent that the total aggregate payments due under all such leases, installment purchase obligations and purchase money security interest obligations entered into under this paragraph, taken together, do not exceed 20% of Net Revenues in the fiscal year immediately preceding the date of incurrence for which financial statements are available, calculated as if such lease, installment purchase obligation or purchase money security interest obligation had been outstanding during such fiscal year;
(f) Indebtedness incurred to persons providing bond reserve credit enhancement and to persons providing credit enhancement for Indebtedness otherwise legally incurred, including without limitation, issuers of letters of credit, surety bonds, guarantees and bond insurance; and
(g) Indebtedness incurred, assumed or guaranteed in connection with the receipt of a contribution of real property to be used in connection with the Lessee if (i) the Lessee provides a certificate to the Lessor that incurring, assuming or guaranteeing the payment of such Indebtedness is necessary as a condition precedent to obtaining a contribution of real property to be used in connection with the Lessee, and (ii) the Lessee provides a certificate to the Lessor signed by an independent appraiser selected by the Lessor, with the consent of the Lessee, certifying that the fair market value of such real propertyPermitted Acquisition must satisfy, at the time of conveyance the making of the Permitted Acquisition, the Permitted Acquisition Test Ratios;
(ii) Indebtedness of the Company pursuant to the Lessee is equal Notes and Indebtedness of any Subsidiary pursuant to at least 100% this Agreement or a Subsidiary Guarantee of the principal amount Notes, including the issuance of Additional Balloon Notes in accordance with the terms thereof;
(iii) Indebtedness of the total Company owing to a Wholly Owned Subsidiary of the Company for so long as such Indebtedness incurredis owing to a Wholly Owned Subsidiary of the Company; provided that any Indebtedness of the Company to any Wholly Owned Subsidiary of the Company is unsecured and subordinated, assumed pursuant to a written agreement, to the Company's obligations under this Agreement and the Notes; provided, further, that disposition, pledge or guaranteed transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Wholly Owned Subsidiary of the Company) shall be deemed to be an incurrence of such Indebtedness by the Lessee as a condition precedent to such conveyance.Company not permitted by this clause (iii);
(hiv) Promptly after Indebtedness of a Wholly Owned Subsidiary of the Company owing to and held by the Company or another Wholly Owned Subsidiary of the Company which is unsecured; provided that (a) any disposition, pledge or transfer of any such Indebtedness to a Person (other than the Company or a Wholly Owned Subsidiary of the Company) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (iv), and (b) any transaction pursuant to which any Wholly Owned Subsidiary of the Company, which has Indebtedness owing to the Company or any other Wholly Owned Subsidiary of the Company, ceases to be a Wholly Owned Subsidiary of the Company shall be deemed to be the incurrence of Indebtedness by such Wholly Owned Subsidiary that is not permitted by this clause (iv);
(v) obligations with respect to surety bonds obtained by the Company or any additional Indebtednessof its Subsidiaries in the ordinary course of business, the Lessee shall furnish the Lessor including to secure their obligations with copies respect to applicable worker's compensation laws and any self insurance;
(vi) Indebtedness of the documentation evidencing such Indebtedness and a certificate Company or any of an Authorized Representative of the Lessee its Subsidiaries incurred to the effect that no event of default then exists under this Lease.finance insurance premiums; and
(ivii) Definitions Hedging Obligations with respect to be used in this Section are as follows:any Senior Indebtedness.
Appears in 1 contract
Incurrence of Indebtedness. (a) The Lessee covenants that it will Company shall not, directly or indirectly, create, incur, issue, assume or suffer to exist (collectively, "incur"), and shall not incur permit any of its Restricted Subsidiaries to incur, any Indebtedness.
(b) Paragraph (a) of this 0 shall not prohibit the existence or assume after the commencement date hereof any Indebtedness without compliance with the following requirements; however, the Lessor may waive incurrence of any of the requirements contained following items of Indebtedness by the Company (collectively, "Company Permitted Debt"): Existing Indebtedness; Indebtedness represented by the Notes issued on the date of this Indenture and any PIK Notes issued in this Section upon consideration satisfaction of a written request from Lessee setting forth the reasons payment of interest thereon; reimbursement obligations for requesting such a waiver. The Lessee may incur Indebtedness in compliance with amounts paid on behalf of the Company by one or more Subsidiaries in accordance with applicable requirements under PUHCA with respect to the provision of goods or services to the Company and one or more Subsidiaries of the following:
Company; Permitted Refinancing Indebtedness with respect to (aA) Long-Term any Existing Indebtedness if there is delivered to the Lessor:
i. An Accountant's Certificate stating, as of the Company and (B) any Indebtedness permitted to be incurred from time immediately after the incurrence to time under this paragraph (b), other than this clause (iv), and, in each case, Permitted Refinancing Indebtedness in respect of subsequent Refinancings of such Indebtedness, provided that Permitted Refinancing Indebtedness in respect of Indebtedness incurred pursuant to clause (vi) (and Permitted Refinancing Indebtedness in respect of subsequent Refinancings of such Indebtedness) of this Paragraph (b) must be Subordinated Indebtedness; Pari Passu Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding in an amount not to exceed, together with all Indebtedness incurred pursuant to clause 19) of paragraph (c) below, $100,000,000; Subordinated Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding in an amount not to exceed $150,000,000; Obligations under Permitted Hedging Agreements; and (viii) Subordinated Indebtedness in an amount not to exceed $115,000,000, plus accrued interest thereon from September 16, 2002 at the Debt Service Coverage Ratio for prime rate of any money center bank, provided that such Subordinated Indebtedness is incurred in connection with the Fiscal Year settlement of litigation and in the form of an Obligation to the relevant litigant or an Affiliate. Notwithstanding the foregoing, Indebtedness may not be incurred pursuant to any of clauses (iv), (v) or (vi) of the immediately preceding sentence (other than Permitted Refinancing Indebtedness with respect to (A) Indebtedness incurred under the Credit Facilities and (B) Indebtedness incurred under clause (iii) of such sentence, and, in each case, Permitted Refinancing Indebtedness with respect to such Refinanced Indebtedness), unless such Indebtedness matures no earlier than the date that is 91 days after the date of incurrence of such Indebtedness for which audited financial statements are available, computed as if such proposed Indebtedness had been incurred at the beginning of such period, was not less than 90%; or
ii. A Lessee Consultant's Certificate stating, that the Debt Service Coverage Ratio is forecasted to be an amount not less than 100%. Provided that the Lessee Consultant's Certificate required by this paragraph shall not be required if the Lessee furnishes the County a certificate of an Authorized Representative stated maturity of the Lessee demonstrating that the Debt Service Coverage Ratio for each of two Fiscal Years immediately preceding the date of incurrence of Notes, and has no required amortization or mandatory prepayment prior to such Indebtedness for which audited financial statements are available, computed as if beginning of such period, has been not less than 125%. The foregoing requirements of subparagraph date.
(a)(iic) Paragraph (a) of this subsection (1) are subject to the qualification that, if in the opinion of a Health Care Consultant (which, if requested by Lessor, is accompanied by a legal opinion supporting the conclusions of the Health Care Consultant) applicable laws or regulations have prevented or will prevent the Lessee from generating the amount of Net Income Available for Debt Service required to be generated by such requirements as a prerequisite to 0 shall not prohibit the incurrence of any of the following items of Indebtedness by the Restricted Subsidiaries (collectively, "Restricted Subsidiary Permitted Debt," and, together with Company Permitted Debt, "Permitted Debt"): Existing Indebtedness; reimbursement obligations for amounts paid on behalf of any Restricted Subsidiary by the Company or one or more Subsidiaries of the Company in accordance with applicable requirements under PUHCA with respect to the provision of goods or services to (A) the Company and one or more Subsidiaries of the Company or (B) one or more Subsidiaries of the Company; Indebtedness incurred by any Restricted Subsidiary pursuant to the Money Pool; Attributable Debt with respect to Permitted Sale/Leasebacks; Permitted Capital Expenditure Indebtedness; Permitted Refinancing Indebtedness with respect to all (A) Existing Indebtedness of Restricted Subsidiaries and (B) any Indebtedness permitted to be incurred from time to time under this paragraph (c), the Lessee shall be deemed to have satisfied such requirement if the Lessee will generate the maximum amount other than this clause (vi), and, in each case, Permitted Refinancing Indebtedness in respect of Net Income Available for Debt Service which in the opinion subsequent Refinancings of such Health Care Consultant can reasonably be generated given such laws Indebtedness; Indebtedness represented by the Preferred Securities and regulations, provided that Common Securities issued by Capital Trust (A) on the date hereof in no event shall the Lessee be deemed an aggregate liquidation amount equal to have satisfied such requirement if the Debt Service Coverage Ratio which can be generated is less than 80%;
(b) Short-Term Indebtedness provided that immediately after the incurrence of such Indebtedness the aggregate principal amount of the Initial Notes, and (B) upon and after the issuance of PIK Notes hereunder, in an additional aggregate liquidation amount equal to the aggregate principal amount of such PIK Notes, and in each case together with accrued and unpaid distributions from time to time thereon; additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding in an amount not to exceed, together with all Short-Term Indebtedness outstanding and not incurred pursuant to another clause (v) of paragraph (b) above, $100,000,000; Indebtedness of this Section shall not exceed 10% of Net Revenues a Restricted Subsidiary that is formed for the most recent fiscal year for which audited financial statements are available;
sole purpose of facilitating an issuance of Company Permitted Debt (c) Completion Indebtedness in a and has no operations apart from holding securities of the Parent and distributing distributions thereon, and has no liabilities apart from such Indebtedness, other than payment obligations incidental to the administration of such Restricted Subsidiary), provided that the principal amount not exceeding 10% and other payment terms of such Indebtedness is equal to the corresponding terms of the aggregate original face amount Indebtedness of the series Company deposited into or with such Restricted Subsidiary and Obligations under Permitted Hedging Agreements of Restricted Subsidiaries. Notwithstanding the foregoing, Indebtedness issued may not be incurred pursuant to finance clauses (vi) or (viii) of the project financed thereby immediately preceding sentence (other than any refunding portions Permitted Refinancing Indebtedness with respect to Indebtedness incurred under (A) the Credit Facilities and (B) Indebtedness incurred under clauses (ii), (iii), (iv) and (v) of such sentence, and, in each case, Permitted Refinancing Indebtedness with respect to such Refinanced Indebtedness), unless such Indebtedness matures no earlier than the date that is 91 days after the date of the Indebtedness) for which Completion Indebtedness is proposed to be issued, without regard to the limitations of paragraph (a) of this Section, provided there is filed with the Lessor (i) a Consulting Architect's Certificate setting forth the amount reasonably expected to be required to complete the project for which the Indebtedness was incurred and stating that the proceeds stated maturity of the Completion Indebtedness Notes, and other moneys available therefore, including estimated investment earnings, will be sufficient has no required amortization or mandatory prepayment prior to complete the project and (ii) a certificate of an Authorized Representative of the Lessee stating that such Completion Indebtedness is necessary to provide a completed and equipped project of the type and scope contemplated at the time that such series of Indebtedness was originally incurred;date.
(d) For purposes of this Section 4.04, Indebtedness incurred will not be deemed to refund any outstanding Indebtedness if have required amortization or prepayment prior to incurrence thereofa specified date solely because the maturity of such debt would accelerate or such debt would become subject to a mandatory or optional prepayment, either (i) redemption or repurchase provision in the Lessee receives a certificate of an Authorized Representative event of the Lessor stating that, taking the proposed Indebtedness and the refunding occurrence of change of control of the existing Indebtedness into account, the Maximum Annual Debt Service immediately after the issuance of the proposed Indebtedness does not exceed by 5% or more the Maximum Annual Debt Service immediately Company prior to the issuance of the proposed indebtedness, or (ii) the conditions described in paragraph (a)(i) above are met for the proposed indebtedness;such date.
(e) Capital leasesNotwithstanding the foregoing, installment purchase obligations and obligations granting purchase money security interests without regard issuance of Parent Guarantees or Subsidiary Guarantees shall not be subject to a n y o f t h e above paragraphsthis 0, but only shall be subject to the extent that the total aggregate payments due under all such leases, installment purchase obligations and purchase money security interest obligations entered into under this paragraph, taken together, do not exceed 20% of Net Revenues in the fiscal year immediately preceding the date of incurrence for which financial statements are available, calculated as if such lease, installment purchase obligation or purchase money security interest obligation had been outstanding during such fiscal year;
(f) Indebtedness incurred to persons providing bond reserve credit enhancement and to persons providing credit enhancement for Indebtedness otherwise legally incurred, including without limitation, issuers of letters of credit, surety bonds, guarantees and bond insurance; and
(g) Indebtedness incurred, assumed or guaranteed in connection with the receipt of a contribution of real property to be used in connection with the Lessee if (i) the Lessee provides a certificate to the Lessor that incurring, assuming or guaranteeing the payment of such Indebtedness is necessary as a condition precedent to obtaining a contribution of real property to be used in connection with the Lessee, and (ii) the Lessee provides a certificate to the Lessor signed by an independent appraiser selected by the Lessor, with the consent of the Lessee, certifying that the fair market value of such real property, at the time of conveyance to the Lessee is equal to at least 100% of the principal amount of the total Indebtedness incurred, assumed or guaranteed by the Lessee as a condition precedent to such conveyance0.
(h) Promptly after the incurrence of any additional Indebtedness, the Lessee shall furnish the Lessor with copies of the documentation evidencing such Indebtedness and a certificate of an Authorized Representative of the Lessee to the effect that no event of default then exists under this Lease.
(i) Definitions to be used in this Section are as follows:
Appears in 1 contract
Sources: Indenture (Allegheny Energy Inc)
Incurrence of Indebtedness. The Lessee covenants that it will not Company shall not, and the Company shall cause each of its subsidiaries to not, directly or indirectly, incur or assume after guarantee, assume, incur or permit to exist any (i) indebtedness for borrowed money, (ii) obligations issued, undertaken or assumed as the commencement date hereof any Indebtedness deferred purchase price of property or services (including, without compliance limitation, “capital leases” in accordance with the following requirements; however, the Lessor may waive any of the requirements contained in this Section upon consideration of a written request from Lessee setting forth the reasons for requesting such a waiver. The Lessee may incur Indebtedness in compliance with one or more of the following:
(aGAAP) Long-Term Indebtedness if there is delivered to the Lessor:
i. An Accountant's Certificate stating, as of the time immediately after the incurrence of such Indebtedness, that the Debt Service Coverage Ratio for the Fiscal Year immediately preceding the date of incurrence of such Indebtedness for which audited financial statements are available, computed as if such proposed Indebtedness had been incurred at the beginning of such period, was not less than 90%; or
ii. A Lessee Consultant's Certificate stating, that the Debt Service Coverage Ratio is forecasted to be an amount not less than 100%. Provided that the Lessee Consultant's Certificate required by this paragraph shall not be required if the Lessee furnishes the County a certificate of an Authorized Representative of the Lessee demonstrating that the Debt Service Coverage Ratio for each of two Fiscal Years immediately preceding the date of incurrence of such Indebtedness for which audited financial statements are available, computed as if beginning of such period, has been not less than 125%. The foregoing requirements of subparagraph (a)(ii) of this subsection (1) are subject to the qualification that, if in the opinion of a Health Care Consultant (which, if requested by Lessor, is accompanied by a legal opinion supporting the conclusions of the Health Care Consultant) applicable laws or regulations have prevented or will prevent the Lessee from generating the amount of Net Income Available for Debt Service required to be generated by such requirements as a prerequisite to the incurrence of Indebtedness, the Lessee shall be deemed to have satisfied such requirement if the Lessee will generate the maximum amount of Net Income Available for Debt Service which in the opinion of such Health Care Consultant can reasonably be generated given such laws and regulations, provided that in no event shall the Lessee be deemed to have satisfied such requirement if the Debt Service Coverage Ratio which can be generated is less than 80%;
(b) Short-Term Indebtedness provided that immediately after the incurrence of such Indebtedness the aggregate principal amount of all Short-Term Indebtedness outstanding and not incurred pursuant to another paragraph of this Section shall not exceed 10% of Net Revenues for the most recent fiscal year for which audited financial statements are available;
(c) Completion Indebtedness in a principal amount not exceeding 10% of the aggregate original face amount of the series of Indebtedness issued to finance the project financed thereby (other than trade payables entered into in the ordinary course of business consistent with past practice), (iii) reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (iv) obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses, (v) indebtedness created or arising under any refunding portions conditional sale or other title retention agreement, or incurred as financing, in either case with respect to any property or assets acquired with the proceeds of such indebtedness (even though the rights and remedies of the Indebtednessseller or bank under such agreement in the event of default are limited to repossession or sale of such property), (vi) monetary obligations under any leasing or similar arrangement which, in connection with GAAP, consistently applied for which Completion Indebtedness the periods covered thereby, is proposed classified as a capital lease, or (vii) indebtedness referred to be issued, without regard to the limitations of paragraph (a) of this Section, provided there is filed with the Lessor in clauses (i) a Consulting Architect's Certificate setting forth the amount reasonably expected to be required to complete the project through (vi) above secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness (collectively, “Indebtedness”), other than the following (collectively, “Permitted Indebtedness”): (A) Indebtedness was incurred and stating that the proceeds of the Completion Company and its subsidiaries existing or arising under this Note and any other Buyer Transaction Document, (B) Indebtedness arising under the Mizuho Transaction Documents; (C) Indebtedness arising in connection with the endorsement of instruments or other payment items for deposit, (D) Indebtedness consisting of (x) unsecured guarantees incurred in the ordinary course of business with respect to surety and other moneys available thereforeappeal bonds, including estimated investment earningsperformance bonds, will be sufficient to complete the project bid bonds, appeal bonds, completion guarantee and similar obligations; and (iiy) a certificate of an Authorized Representative unsecured guarantees with respect to Indebtedness of the Lessee stating that such Completion Indebtedness is necessary to provide a completed and equipped project Company or one of the type and scope contemplated at the time that such series of Indebtedness was originally incurred;
(d) Indebtedness incurred to refund any outstanding Indebtedness if prior to incurrence thereofits subsidiaries, either (i) the Lessee receives a certificate of an Authorized Representative of the Lessor stating that, taking the proposed Indebtedness and the refunding of the existing Indebtedness into account, the Maximum Annual Debt Service immediately after the issuance of the proposed Indebtedness does not exceed by 5% or more the Maximum Annual Debt Service immediately prior to the issuance of the proposed indebtedness, or (ii) the conditions described in paragraph (a)(i) above are met for the proposed indebtedness;
(e) Capital leases, installment purchase obligations and obligations granting purchase money security interests without regard to a n y o f t h e above paragraphs, but only to the extent that the total aggregate payments due Person that is obligated under all such leases, installment purchase obligations and purchase money security interest obligations entered into under this paragraph, taken together, do not exceed 20% of Net Revenues in the fiscal year immediately preceding the date of incurrence for which financial statements are available, calculated as if guaranty could have incurred such lease, installment purchase obligation or purchase money security interest obligation had been outstanding during such fiscal year;
(f) Indebtedness incurred to persons providing bond reserve credit enhancement and to persons providing credit enhancement for Indebtedness otherwise legally incurred, including without limitation, issuers of letters of credit, surety bonds, guarantees and bond insurance; and
(g) Indebtedness incurred, assumed or guaranteed in connection with the receipt of a contribution of real property to be used in connection with the Lessee if (i) the Lessee provides a certificate to the Lessor that incurring, assuming or guaranteeing the payment of such Indebtedness is necessary as a condition precedent to obtaining a contribution of real property to be used in connection with the Lesseeunderlying Indebtedness, and (iiE) unsecured Indebtedness incurred in respect of netting services, overdraft protection, credit card transactions, and other like services, in each case, incurred in the Lessee provides a certificate to the Lessor signed by an independent appraiser selected by the Lessor, with the consent ordinary course of the Lessee, certifying that the fair market value of such real property, at the time of conveyance to the Lessee is equal to at least 100% of the principal amount of the total Indebtedness incurred, assumed or guaranteed by the Lessee as a condition precedent to such conveyancebusiness.
(h) Promptly after the incurrence of any additional Indebtedness, the Lessee shall furnish the Lessor with copies of the documentation evidencing such Indebtedness and a certificate of an Authorized Representative of the Lessee to the effect that no event of default then exists under this Lease.
(i) Definitions to be used in this Section are as follows:
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Incurrence of Indebtedness. (a) The Lessee covenants that it Issuer will not, and will not incur permit any of its Restricted Subsidiaries to, directly or assume after the commencement date hereof indirectly, Incur any Indebtedness without compliance with the following requirements(including Acquired Debt); provided, however, the Lessor may waive any that all of the requirements contained in this Section upon consideration of a written request from Lessee setting forth the reasons for requesting such a waiver. The Lessee may incur Indebtedness in compliance with one or more of the followingbelow are satisfied:
(ai) Long-Term the Issuer or any of its Restricted Subsidiaries may Incur Indebtedness (including Acquired Debt), if there is delivered to the Lessor:
i. An Accountant's Certificate stating, as of the time immediately after the incurrence of such Indebtedness, that the Debt Service Consolidated Fixed Charge Coverage Ratio for the Fiscal Year Issuer’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is Incurred would have been at least 2.0:1.0, determined on a pro forma basis (including a pro forma application of incurrence of such Indebtedness for which audited financial statements are availablethe net proceeds therefrom), computed as if such proposed the additional Indebtedness had been incurred Incurred at the beginning of such four-quarter period;
(ii) the Issuer or any of its Restricted Subsidiaries may Incur Indebtedness (including Acquired Debt), was not less than 90%; or
ii. A Lessee Consultant's Certificate stating, that if immediately following the Debt Service Coverage Ratio is forecasted to be an amount not less than 100%. Provided that the Lessee Consultant's Certificate required by this paragraph shall not be required if the Lessee furnishes the County a certificate of an Authorized Representative of the Lessee demonstrating that the Debt Service Coverage Ratio for each of two Fiscal Years immediately preceding the date of incurrence of such Indebtedness for which audited financial statements are available, computed as if beginning Intendedness the ratio of such period, has been not less than 125%. The foregoing requirements of subparagraph (a)(iii) of this subsection (1) are subject to the qualification that, if in the opinion of a Health Care Consultant (which, if requested by Lessor, is accompanied by a legal opinion supporting the conclusions of the Health Care Consultant) applicable laws or regulations have prevented or will prevent the Lessee from generating the amount of Net Income Available for Debt Service required to be generated by such requirements as a prerequisite to the incurrence of Consolidated Indebtedness, the Lessee to (ii) Consolidated EBITDA, does not exceed 4.0:1.0; and
(iii) no Default or Event of Default shall have occurred and be deemed to have satisfied such requirement if the Lessee will generate the maximum amount of Net Income Available for Debt Service which in the opinion of such Health Care Consultant can reasonably be generated given such laws and regulations, provided that in no event shall the Lessee be deemed to have satisfied such requirement if the Debt Service Coverage Ratio which can be generated is less than 80%;continuing.
(b) Short-Term Indebtedness provided that immediately after Notwithstanding the incurrence foregoing, Section 6.9(a) will not prohibit the Incurrence of such Indebtedness the aggregate principal amount of all Short-Term Indebtedness outstanding and not incurred pursuant to another paragraph of this Section shall not exceed 10% of Net Revenues for the most recent fiscal year for which audited financial statements are available;
(c) Completion Indebtedness in a principal amount not exceeding 10% any of the aggregate original face amount of the series of Indebtedness issued to finance the project financed thereby following (other than any refunding portions of the Indebtedness) for which Completion Indebtedness is proposed to be issuedcollectively, without regard to the limitations of paragraph (a) of this Section, provided there is filed with the Lessor (i) a Consulting Architect's Certificate setting forth the amount reasonably expected to be required to complete the project for which the Indebtedness was incurred and stating that the proceeds of the Completion Indebtedness and other moneys available therefore, including estimated investment earnings, will be sufficient to complete the project and (ii) a certificate of an Authorized Representative of the Lessee stating that such Completion Indebtedness is necessary to provide a completed and equipped project of the type and scope contemplated at the time that such series of Indebtedness was originally incurred;“Permitted Debt”):
(d) Indebtedness incurred to refund any outstanding Indebtedness if prior to incurrence thereof, either (i) the Lessee receives a certificate Incurrence of an Authorized Representative Attributable Debt or Indebtedness and obligations represented by Capital Lease Obligations or Purchase Money Obligations, in each case, incurred for the purpose of financing all or any part of the Lessor stating thatpurchase price or cost of design, taking construction, installation, development or improvement of property, plant or equipment used in the proposed Indebtedness and the refunding business of the existing Issuer or any of its Restricted Subsidiaries, including all Permitted Refinancing Indebtedness into accountIncurred to refund, the Maximum Annual Debt Service immediately after the issuance refinance or replace any Indebtedness Incurred pursuant to this Section 6.9(b)(i), in an aggregate principal amount at any time outstanding not to exceed 3.0% of the proposed Indebtedness does not exceed by 5% or more the Maximum Annual Debt Service immediately prior to the issuance of the proposed indebtedness, or Consolidated Net Tangible Assets at any time outstanding;
(ii) the conditions described in paragraph Incurrence of Non-Recourse Debt; (a)(i) above are met for the proposed indebtedness;
(e) Capital leases, installment purchase obligations and obligations granting purchase money security interests without regard to a n y o f t h e above paragraphs, but only to the extent that the total aggregate payments due under all such leases, installment purchase obligations and purchase money security interest obligations entered into under this paragraph, taken together, do not exceed 20% of Net Revenues in the fiscal year immediately preceding the date of incurrence for which financial statements are available, calculated as if such lease, installment purchase obligation or purchase money security interest obligation had been outstanding during such fiscal year;
(f) Indebtedness incurred to persons providing bond reserve credit enhancement and to persons providing credit enhancement for Indebtedness otherwise legally incurred, including without limitation, issuers of letters of credit, surety bonds, guarantees and bond insurance; and
(g) Indebtedness incurred, assumed or guaranteed in connection with the receipt of a contribution of real property to be used in connection with the Lessee if (iiii) the Lessee provides a certificate to the Lessor that incurring, assuming or guaranteeing the payment Incurrence of such Indebtedness is necessary as a condition precedent to obtaining a contribution of real property to be used in connection with the Lessee, and (ii) the Lessee provides a certificate to the Lessor signed by an independent appraiser selected by the Lessor, with the consent of the Lessee, certifying that the fair market value of such real property, at the time of conveyance to the Lessee is equal to at least 100% of the principal amount of the total Indebtedness incurred, assumed or guaranteed by the Lessee as a condition precedent to such conveyance.
(h) Promptly after the incurrence of any additional Existing Indebtedness, the Lessee shall furnish the Lessor with copies of the documentation evidencing such Indebtedness and a certificate of an Authorized Representative of the Lessee to the effect that no event of default then exists under this Lease.
(i) Definitions to be used in this Section are as follows:;
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Incurrence of Indebtedness. The Lessee covenants that it will Company shall not, and shall not incur permit any of its Restricted Subsidiaries to, directly or assume after the commencement date hereof indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness without compliance with unless the following requirements; however, the Lessor may waive any of the requirements contained in this Section upon consideration of a written request from Lessee setting forth the reasons Company's Debt to Consolidated Cash Flow Ratio for requesting such a waiver. The Lessee may incur Indebtedness in compliance with one or more of the following:
(a) Long-Term Indebtedness if there is delivered its four full fiscal quarters ending immediately prior to the Lessor:
i. An Accountant's Certificate statingdate such additional Indebtedness is created, as incurred, issued, assumed or guaranteed would have been no greater than 6.0 to 1, and such Indebtedness is not senior in right of payment to the time immediately after Securities; PROVIDED that such calculation shall give effect to (A) the incurrence of any Indebtedness (after giving effect to the application of the proceeds thereof) in connection with the simultaneous acquisition of any person, business, property or assets and (B) the Consolidated Cash Flow generated by such acquired person, business, property or assets, giving effect in each case to 49 such incurrence of Indebtedness, that the Debt Service Coverage Ratio for the Fiscal Year immediately preceding the date application of incurrence of such Indebtedness for which audited financial statements are available, computed proceeds and Consolidated Cash Flow as if such proposed Indebtedness acquisition had been incurred occurred at the beginning of such four quarter period, was not less than 90%; or
ii. A Lessee Consultant's Certificate stating, that the Debt Service Coverage Ratio is forecasted to be an amount not less than 100%. Provided that the Lessee Consultant's Certificate required by this paragraph shall not be required if the Lessee furnishes the County a certificate of an Authorized Representative For purposes of the Lessee demonstrating that foregoing provision, cash flow generated by any acquired person, business, property or asset shall be determined on the Debt Service Coverage Ratio for each same basis as the definition of two Fiscal Years Consolidated Cash Flow and shall be based on the actual earnings before interest, taxes, depreciation and amortization of such acquired person, business, property or asset during the immediately preceding four full fiscal quarters PLUS (y)(i) the date savings in cost of incurrence goods sold that would have resulted during that period from the effect of such Indebtedness using the Company's actual costs for which audited financial statements are available, computed as if beginning of such period, has been not less than 125%. The foregoing requirements of subparagraph (a)(ii) of this subsection (1) are subject to the qualification that, if in the opinion of a Health Care Consultant (which, if requested by Lessor, is accompanied by a legal opinion supporting the conclusions of the Health Care Consultant) applicable laws or regulations have prevented or will prevent the Lessee from generating the amount of Net Income Available for Debt Service required to be generated by such requirements as a prerequisite to the incurrence of Indebtedness, the Lessee shall be deemed to have satisfied such requirement if the Lessee will generate the maximum amount of Net Income Available for Debt Service which in the opinion of such Health Care Consultant can reasonably be generated given such laws comparable goods and regulations, provided services during that in no event shall the Lessee be deemed to have satisfied such requirement if the Debt Service Coverage Ratio which can be generated is less than 80%;
(b) Short-Term Indebtedness provided that immediately after the incurrence of such Indebtedness the aggregate principal amount of all Short-Term Indebtedness outstanding and not incurred pursuant to another paragraph of this Section shall not exceed 10% of Net Revenues for the most recent fiscal year for which audited financial statements are available;
(c) Completion Indebtedness in a principal amount not exceeding 10% of the aggregate original face amount of the series of Indebtedness issued to finance the project financed thereby (other than any refunding portions of the Indebtedness) for which Completion Indebtedness is proposed to be issued, without regard to the limitations of paragraph (a) of this Section, provided there is filed with the Lessor (i) a Consulting Architect's Certificate setting forth the amount reasonably expected to be required to complete the project for which the Indebtedness was incurred and stating that the proceeds of the Completion Indebtedness and other moneys available therefore, including estimated investment earnings, will be sufficient to complete the project period and (ii) a certificate other savings in cost of an Authorized Representative goods sold or eliminations of selling, general and administrative expenses as determined by the Lessee stating that Company in good faith in its consideration of such Completion Indebtedness is necessary to provide a completed acquisitions and equipped project consistent with the Company's experiences in acquisitions of the type and scope contemplated at the time that such series of Indebtedness was originally incurred;
similar businesses MINUS (d) Indebtedness incurred to refund any outstanding Indebtedness if prior to incurrence thereof, either (iz) the Lessee receives a certificate incremental expenses that would be included in cost of an Authorized Representative of goods sold and selling, general and administrative expenses that would have been incurred by the Lessor stating that, taking the proposed Indebtedness and the refunding of the existing Indebtedness into account, the Maximum Annual Debt Service immediately after the issuance of the proposed Indebtedness does not exceed by 5% or more the Maximum Annual Debt Service immediately prior to the issuance of the proposed indebtedness, or (ii) the conditions described in paragraph (a)(i) above are met for the proposed indebtedness;
(e) Capital leases, installment purchase obligations and obligations granting purchase money security interests without regard to a n y o f t h e above paragraphs, but only to the extent that the total aggregate payments due under all such leases, installment purchase obligations and purchase money security interest obligations entered into under this paragraph, taken together, do not exceed 20% of Net Revenues Company in the fiscal year immediately preceding the date operation of incurrence for which financial statements are availablesuch acquired person, calculated as if such leasebusiness, installment purchase obligation property or purchase money security interest obligation had been outstanding assets during such fiscal year;
(f) Indebtedness incurred to persons providing bond reserve credit enhancement and to persons providing credit enhancement for Indebtedness otherwise legally incurred, including without limitation, issuers of letters of credit, surety bonds, guarantees and bond insurance; and
(g) Indebtedness incurred, assumed or guaranteed in connection with the receipt of a contribution of real property to be used in connection with the Lessee if (i) the Lessee provides a certificate to the Lessor that incurring, assuming or guaranteeing the payment of such Indebtedness is necessary as a condition precedent to obtaining a contribution of real property to be used in connection with the Lessee, and (ii) the Lessee provides a certificate to the Lessor signed by an independent appraiser selected by the Lessor, with the consent of the Lessee, certifying that the fair market value of such real property, at the time of conveyance to the Lessee is equal to at least 100% of the principal amount of the total Indebtedness incurred, assumed or guaranteed by the Lessee as a condition precedent to such conveyanceperiod.
(h) Promptly after the incurrence of any additional Indebtedness, the Lessee shall furnish the Lessor with copies of the documentation evidencing such Indebtedness and a certificate of an Authorized Representative of the Lessee to the effect that no event of default then exists under this Lease.
(i) Definitions to be used in this Section are as follows:
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Sources: Indenture (Primedia Inc)