Common use of Limitation on Incurrence of Additional Indebtedness Clause in Contracts

Limitation on Incurrence of Additional Indebtedness. (a) The Company will not create, issue, assume, guarantee or in any manner become directly or indirectly liable for the payment of, or otherwise incur (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness) other than Permitted Indebtedness unless, at the time of any such in- curr▇▇▇▇, ▇▇e Consolidated Fixed Charge Coverage Ratio would have been at least equal to 2.75 to 1.0 (after giving pro forma effect to (i) the incurrence of such Indebtedness and (if ap- plicable) the application of the net proceeds therefrom, in- cluding to refinance other Indebtedness, as if such Indebted- ness was incurred and the application of such proceeds occurred on the first day of the period for which the Consolidated Fixed Charge Coverage Ratio is calculated, (ii) the incurrence, re- payment or retirement of any other Indebtedness by the Company or any Subsidiary since the first day of such period as if such Indebtedness was incurred, repaid or retired at the beginning of such period (except that, in making such computation, the amount of Indebtedness under any revolving credit facility shall be computed based upon the average daily balance of such Indebtedness during such period) and (iii) the acquisition (whether by purchase, merger or otherwise) or disposition (whether by sale, merger or otherwise) of any company, entity or business acquired or disposed of by the Company or any Sub- sidiary or ACMI Contracted Aircraft acquired by the Company or any Subsidiary, in any such case, since the first day of such period, as if such acquisition or disposition of a company, en- tity or business, or such acquisition of an ACMI Contracted Aircraft acquired by the Company or any Subsidiary, in any such case, since the first day of such period, as if such acquisi- tion or disposition of a company, entity or business, or such acquisition of an ACMI Contracted Aircraft occurred at the be- ginning of such period; provided, however, that pro forma ef- fect shall not be given to a number of ACMI Contracted Aircraft exceeding five in any four fiscal quarters. (b) The Company will not permit any Subsidiary to incur any Indebtedness (including any Acquired Indebtedness) other than Permitted Subsidiary Indebtedness.

Limitation on Incurrence of Additional Indebtedness. Except as set forth below, from and after the Issue Date, the Company and the Guarantors shall not, and shall not permit any of their respective Subsidiaries (other than CDGC or any of its Subsidiaries) to, directly or indirectly, issue, assume, guaranty, incur, become directly or indirectly liable with respect to (including as a result of an acquisition, merger or consolidation), extend the maturity of, or otherwise become responsible for, contingently or otherwise (individually and collectively, to "incur," or, as appropriate, an "incurrence"), any Indebtedness. Notwithstanding the foregoing: (a) The Company will not create, issue, assume, guarantee and any Guarantor may incur Indebtedness if (i) no Default or in any manner become directly or indirectly liable for Event of Default shall have occurred and be continuing at the payment time of, or otherwise incur (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness) other than Permitted Indebtedness unless, at the time of any such in- curr▇▇▇▇, ▇▇e Consolidated Fixed Charge Coverage Ratio would have been at least equal to 2.75 to 1.0 (occur after giving effect, on a pro forma effect to (i) the basis, to, such incurrence of such Indebtedness and (if ap- plicableii) on the application date of the net proceeds therefrom, in- cluding to refinance other Indebtedness, as if such Indebted- ness was incurred and the application of such proceeds occurred on the first day of the period for which the Consolidated Fixed Charge Coverage Ratio is calculated, (ii) the incurrence, re- payment or retirement of any other Indebtedness by the Company or any Subsidiary since the first day of such period as if such Indebtedness was incurred, repaid or retired at the beginning of such period (except that, in making such computation, the amount of Indebtedness under any revolving credit facility shall be computed based upon the average daily balance incurrence of such Indebtedness during such period) and (iii) the acquisition (whether by purchase"Incurrence Date"), merger or otherwise) or disposition (whether by sale, merger or otherwise) the Consolidated Coverage Ratio of any company, entity or business acquired or disposed of by the Company or any Sub- sidiary or ACMI Contracted Aircraft acquired by for the Company or any SubsidiaryReference Period immediately preceding the Incurrence Date, in any after giving effect on a pro forma basis to such case, since the first day incurrence of such periodIndebtedness, as if such acquisition or disposition of a company, en- tity or business, or such acquisition of an ACMI Contracted Aircraft acquired by the Company or any Subsidiary, in any such case, since the first day of such period, as if such acquisi- tion or disposition of a company, entity or business, or such acquisition of an ACMI Contracted Aircraft occurred would be at the be- ginning of such period; provided, however, that pro forma ef- fect shall not be given least 1.75 to a number of ACMI Contracted Aircraft exceeding five in any four fiscal quarters.1; (b) The Company will and any Guarantor may incur Indebtedness, provided, that the aggregate amount of such Indebtedness of the Company and its Subsidiaries (exclusive of Permitted FF&E Financing, Non-recourse Indebtedness and Indebtedness incurred in connection with a Qualified New Project) outstanding at any time shall not permit exceed two million dollars ($2,000,000); (c) The Company and any Subsidiary Guarantor may incur Indebtedness evidenced by the Securities and other obligations pursuant to the Indenture up to the amounts specified herein as of the Issue Date; (d) The Company and any Guarantor may incur any Indebtedness consisting of Permitted FF&E Financing, provided, that the aggregate amount of Indebtedness incurred pursuant to this paragraph (d) (including any Acquired Indebtedness issued to refinance, replace or refund such Indebtedness) other shall not constitute more than 100% of the cost (reportable on the balance sheet (including all appropriate notes thereto) of such person in accordance with GAAP) to the Company, its Subsidiaries or any Native American Tribe of the FF&E so purchased or leased; (e) The Company and any Guarantor may incur Non-recourse Indebtedness; (f) The Company and any Guarantor may incur Refinancing Indebtedness with respect to any Indebtedness, as applicable, described in clauses (a) through (e) of this Section 5.11 so long as, in the case of Indebtedness used to refinance, refund, or replace Indebtedness in clause (d), such Refinancing Indebtedness satisfies the applicable requirements of such clauses; and (g) The Company and any Guarantor may incur Indebtedness in connection with a Qualified New Project. Notwithstanding the foregoing limitations, the limitations of this Section 5.11 shall not apply to the incurrence of Permitted Subsidiary Indebtedness.

Limitation on Incurrence of Additional Indebtedness. (a) The Company will shall not, and shall not permit any of its Restricted Subsidiaries or Unrestricted Subsidiary Guarantors to, directly or indirectly, create, issueincur, assume, guarantee guarantee, acquire, become liable, contingently or in any manner become directly or indirectly liable for the payment ofotherwise, with respect to, or otherwise incur become responsible for payment of (collectively, "incur"), ) any Indebtedness (including any Acquired Indebtedness) other than Permitted Indebtedness unlessIndebtedness); provided, however, that if no Default or Event of Default shall have occurred and be continuing at the time of or as a consequence of the incurrence of any such in- curr▇▇▇▇Indebtedness, ▇▇e Consolidated Fixed Charge Coverage the Company or any of its Restricted Subsidiaries that is or, upon such incurrence, becomes a Guarantor may incur Indebtedness (including, without limitation, Acquired Indebtedness) or issue shares of Disqualified Capital Stock and any Restricted Subsidiary of the Company that is not or will not, upon such incurrence, become a Guarantor may incur Acquired Indebtedness, in each case if the Debt to EBITDA Ratio for the Company's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which that additional Indebtedness is incurred or that Disqualified Capital Stock is issued would have been at least equal to 2.75 less than 5.50 to 1.0 (after giving determined on a consolidated pro forma effect to (i) the incurrence of such Indebtedness and (if ap- plicable) the basis, including a pro forma application of the net proceeds therefrom, in- cluding to refinance other Indebtednessas if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as if such Indebted- ness was incurred and the application of such proceeds occurred on the first day of the period for which the Consolidated Fixed Charge Coverage Ratio is calculatedcase may be, (ii) the incurrence, re- payment or retirement of any other Indebtedness by the Company or any Subsidiary since the first day of such period as if such Indebtedness was incurred, repaid or retired at the beginning of such period (except that, in making such computation, the amount of Indebtedness under any revolving credit facility shall be computed based upon the average daily balance of such Indebtedness during such that four-quarter period) and (iii) the acquisition (whether by purchase, merger or otherwise) or disposition (whether by sale, merger or otherwise) of any company, entity or business acquired or disposed of by the Company or any Sub- sidiary or ACMI Contracted Aircraft acquired by the Company or any Subsidiary, in any such case, since the first day of such period, as if such acquisition or disposition of a company, en- tity or business, or such acquisition of an ACMI Contracted Aircraft acquired by the Company or any Subsidiary, in any such case, since the first day of such period, as if such acquisi- tion or disposition of a company, entity or business, or such acquisition of an ACMI Contracted Aircraft occurred at the be- ginning of such period; provided, however, that pro forma ef- fect shall not be given to a number of ACMI Contracted Aircraft exceeding five in any four fiscal quarters. (b) The Company will not permit any Subsidiary to incur any Indebtedness (including any Acquired Indebtedness) other than Permitted Subsidiary Indebtedness.

Limitation on Incurrence of Additional Indebtedness. (a) The Company will not create, issue, assume, guarantee or in any manner become directly or indirectly liable for the payment of, or otherwise incur (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness) other than Permitted Indebtedness unless, at the time of any such in- curr▇▇▇▇incurrence, ▇▇e the Consolidated Fixed Charge Coverage Ratio would have been at least equal to 2.75 to 1.0 (after giving pro forma effect to (i) the incurrence of such Indebtedness and (if ap- plicableapplicable) the application of the net proceeds therefrom, in- cluding including to refinance other Indebtedness, as if such Indebted- ness Indebtedness was incurred and the application of such proceeds occurred on the first day of the period for which the Consolidated Fixed Charge Coverage Ratio is calculated, (ii) the incurrence, re- payment repayment or retirement of any other Indebtedness by the Company or any Subsidiary since the first day of such period as if such Indebtedness was incurred, repaid or retired at the beginning of such period (except that, in making such computation, the amount of Indebtedness under any revolving credit facility shall be computed based upon the average daily balance of such Indebtedness during such period) and (iii) the acquisition (whether by purchase, merger or otherwise) or disposition (whether by sale, merger or otherwise) of any company, entity or business acquired or disposed of by the Company or any Sub- sidiary Subsidiary or ACMI Contracted Aircraft acquired by the Company or any Subsidiary, in any such case, since the first day of such period, as if such acquisition or disposition of a company, en- tity entity or business, or such acquisition of an ACMI Contracted Aircraft acquired by the Company or any Subsidiary, in any such case, since the first day of such period, as if such acquisi- tion acquisition or disposition of a company, entity or business, or such acquisition of an ACMI Contracted Aircraft occurred at the be- ginning beginning of such period; provided, however, that pro forma ef- fect shall not be given to a number of ACMI Contracted Aircraft exceeding five in any four fiscal quarters., (b) The Company will not permit any Subsidiary to incur any Indebtedness (including any Acquired Indebtedness) other than Permitted Subsidiary Indebtedness.

Limitation on Incurrence of Additional Indebtedness. (a) The Company will shall not, and shall not permit any of its Restricted Subsidiaries or Unrestricted Subsidiary Guarantors to, directly or indirectly, create, issueincur, assume, guarantee guarantee, acquire, become liable, contingently or in any manner become directly or indirectly liable for the payment ofotherwise, with respect to, or otherwise incur become responsible for payment of (collectively, "incur"), ) any Indebtedness (including any Acquired Indebtedness) other than Permitted Indebtedness unlessIndebtedness); provided, however, that if no Default or Event of Default shall have occurred and be continuing at the time of or as a consequence of the incurrence of any such in- curr▇▇▇▇Indebtedness, ▇▇e Consolidated Fixed Charge Coverage the Company or any of its Restricted Subsidiaries that is or, upon such incurrence, becomes a Guarantor may incur Indebtedness (including, without limitation, Acquired Indebtedness) or issue shares of Disqualified Capital Stock and any Restricted Subsidiary of the Company that is not or will not, upon such incurrence, become a Guarantor may incur Acquired Indebtedness, in each case if the Debt to EBITDA Ratio for the Company's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which that additional Indebtedness is incurred or that Disqualified Capital Stock is issued would have been at least equal less than 5.50 to 2.75 1.0, in the case of any incurrence or issuance on or before the second anniversary of the Issue Date and 5.00 to 1.0 (1.0, in the case of any incurrence or issuance after giving the second anniversary of the Issue Date, in each case determined on a consolidated pro forma effect to (i) the incurrence of such Indebtedness and (if ap- plicable) the basis, including a pro forma application of the net proceeds therefrom, in- cluding to refinance other Indebtednessas if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as if such Indebted- ness was incurred and the application of such proceeds occurred on the first day of the period for which the Consolidated Fixed Charge Coverage Ratio is calculatedcase may be, (ii) the incurrence, re- payment or retirement of any other Indebtedness by the Company or any Subsidiary since the first day of such period as if such Indebtedness was incurred, repaid or retired at the beginning of such period (except that, in making such computation, the amount of Indebtedness under any revolving credit facility shall be computed based upon the average daily balance of such Indebtedness during such that four-quarter period) and (iii) the acquisition (whether by purchase, merger or otherwise) or disposition (whether by sale, merger or otherwise) of any company, entity or business acquired or disposed of by the Company or any Sub- sidiary or ACMI Contracted Aircraft acquired by the Company or any Subsidiary, in any such case, since the first day of such period, as if such acquisition or disposition of a company, en- tity or business, or such acquisition of an ACMI Contracted Aircraft acquired by the Company or any Subsidiary, in any such case, since the first day of such period, as if such acquisi- tion or disposition of a company, entity or business, or such acquisition of an ACMI Contracted Aircraft occurred at the be- ginning of such period; provided, however, that pro forma ef- fect shall not be given to a number of ACMI Contracted Aircraft exceeding five in any four fiscal quarters. (b) The Company will not permit any Subsidiary to incur any Indebtedness (including any Acquired Indebtedness) other than Permitted Subsidiary Indebtedness.

Limitation on Incurrence of Additional Indebtedness. (a) The Company will not create, issue, assume, guarantee or in any manner become directly or indirectly liable for the payment of, or otherwise incur (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness) other than Permitted Indebtedness unless, at the time of any such in- curr▇▇▇▇incurrence, ▇▇e the Consolidated Fixed Charge Coverage Ratio would have been at least equal to 2.75 to 1.0 (after giving pro forma effect to (i) the incurrence of such Indebtedness and (if ap- plicableapplicable) the application of the net proceeds therefrom, in- cluding including to refinance other Indebtedness, as if such Indebted- ness Indebtedness was incurred and the application of such proceeds occurred on the first day of the period for which the Consolidated Fixed Charge Coverage Ratio is calculated, (ii) the incurrence, re- payment repayment or retirement of any other Indebtedness by the Company or any Subsidiary since the first day of such period as if such Indebtedness was incurred, repaid or retired at the beginning of such period (except that, in making such computation, the amount of Indebtedness under any revolving credit facility shall be computed based upon the average daily balance of such Indebtedness during such period) and (iii) the acquisition (whether by purchase, merger or otherwise) or disposition (whether by sale, merger or otherwise) of any company, entity or business acquired or disposed of by the Company or any Sub- sidiary Subsidiary or ACMI Contracted Aircraft acquired by the Company or any Subsidiary, in any such case, since the first day of such period, as if such acquisition or disposition of a company, en- tity entity or business, or such acquisition of an ACMI Contracted Aircraft acquired by the Company or any Subsidiary, in any such case, since the first day of such period, as if such acquisi- tion acquisition or disposition of a company, entity or business, or such acquisition of an ACMI Contracted Aircraft occurred at the be- ginning beginning of such period; provided, however, that pro forma ef- fect effect shall not be given to a number of ACMI Contracted Aircraft exceeding five in any four fiscal quarters. (b) The Company will not permit any Subsidiary to incur any Indebtedness (including any Acquired Indebtedness) other than Permitted Subsidiary Indebtedness.

Limitation on Incurrence of Additional Indebtedness. (aA) No Significant Subsidiary shall, directly or indirectly, create, incur, issue, assume, guarantee, permit to exist or otherwise become directly or indirectly liable with respect to any Indebtedness and the Company shall not, directly or indirectly, create, incur, issue, assume, guarantee, permit to exist or otherwise become directly or indirectly liable with respect to any Indebtedness (other than, in the case of the Company, Subordinated Indebtedness), except for (i) Indebtedness, in the case of the Company, issued under this Indenture, (ii) Indebtedness, in the case of the Company, that is pari passu in right of payment to the Notes, refinancing or replacing all or a portion of the Notes, (iii) Indebtedness, in the case of the Company or any Significant Subsidiary, for borrowed money issued to any bank or other financial institution, (iv) Indebtedness, in the case of the Company or any Significant Subsidiary, existing on the date hereof and not otherwise allowed pursuant to this Section 4.9(A) not to exceed for the Company and all such Significant Subsidiaries together an aggregate of $500,000 outstanding, (v) Intercompany Indebtedness, (vi) Indebtedness, in the case of the Company, in respect of commercial paper to the extent the obligations of the Company thereunder are guaranteed by, or otherwise receive a credit enhancement from, a bank or other financial institution, and (vii) additional Indebtedness, in the case of the Company or any Significant Subsidiary, not to exceed for the Company and all such Significant Subsidiaries together an aggregate of $5,000,000 outstanding at any time; provided, that any such additional Indebtedness issued by the Company shall be pari passu in right of payment to the Notes. (B) The Company will not shall not, directly or indirectly, create, incur, issue, assume, guarantee or in any manner otherwise become directly or indirectly liable for the payment of, or otherwise incur (collectively, "incur"), with respect to any Indebtedness that is subordinated in right of payment to the Notes (including any Acquired "Subordinated Indebtedness") other than Permitted Indebtedness unless, at the time of any such in- curr▇▇▇▇, ▇▇e Consolidated Fixed Charge Coverage Ratio would have been at least equal to 2.75 to 1.0 (after giving pro forma effect to unless (i) such Subordinated Indebtedness shall have a maturity date after the incurrence of such Indebtedness and (if ap- plicable) the application maturity date of the net proceeds therefrom, in- cluding to refinance other Indebtedness, as if such Indebted- ness was incurred and the application of such proceeds occurred on the first day of the period for which the Consolidated Fixed Charge Coverage Ratio is calculatedNotes, (ii) no payment in respect of the incurrence, re- payment or retirement of any other Indebtedness by the Company or any Subsidiary since the first day principal of such period as if such Subordinated Indebtedness was incurred(whether at maturity, repaid by redemption, repurchase or retired at the beginning of such period (except that, in making such computation, the amount of Indebtedness under any revolving credit facility otherwise) shall be computed based upon permitted to be made (or actually made) until after the average daily balance maturity date of such Indebtedness during such period) the Notes, and (iii) such Subordinated Indebtedness is subordinated to the acquisition (whether by purchase, merger or otherwise) or disposition (whether by sale, merger or otherwise) of any company, entity or business acquired or disposed of by the Company or any Sub- sidiary or ACMI Contracted Aircraft acquired by the Company or any Subsidiary, in any such case, since the first day of such period, as if such acquisition or disposition of a company, en- tity or business, or such acquisition of an ACMI Contracted Aircraft acquired by the Company or any Subsidiary, in any such case, since the first day of such period, as if such acquisi- tion or disposition of a company, entity or business, or such acquisition of an ACMI Contracted Aircraft occurred at the be- ginning of such period; provided, however, that pro forma ef- fect shall not be given to a number of ACMI Contracted Aircraft exceeding five in any four fiscal quarters. (b) The Company will not permit any Subsidiary to incur any Indebtedness Notes (including any Acquired restrictions on the Company's ability to pay such Subordinated Indebtedness) other than Permitted Subsidiary at least to the same extent that the Notes are subordinated to the Senior Indebtedness.

Limitation on Incurrence of Additional Indebtedness. At any time from and including the Series A Issue Date to and excluding the Issue Date, the Company shall not have, and shall not have caused or permitted any of its Restricted Subsidiaries to, directly or indirectly incur any Indebtedness except in compliance with Section 4.04 of the indenture governing the Old Series A Notes as in effect immediately prior to the consummation of the Transactions. At any time from and after the Issue Date, (a) The Company will shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, issueincur, assume, guarantee guarantee, acquire, become liable, contingently or in any manner become directly or indirectly liable for the payment ofotherwise, with respect to, or otherwise incur become responsible for payment of (collectively, "“incur"), ”) any Indebtedness (including any Acquired Indebtedness) other than Permitted Indebtedness unlessIndebtedness); provided, however, that if no Default or Event of Default shall have occurred and be continuing at the time of or as a consequence of the incurrence of any such in- curr▇▇▇▇Indebtedness, ▇▇e Consolidated Fixed Charge Coverage Ratio would have been at least equal to 2.75 to 1.0 the Company and its Restricted Subsidiaries may incur Indebtedness (after giving pro forma effect to (iincluding, without limitation, Acquired Indebtedness) if on the date of the incurrence of such Indebtedness and (if ap- plicable) the application of the net proceeds therefrom, in- cluding to refinance other Indebtedness, as if such Indebted- ness was incurred and after giving effect to the application of such proceeds occurred on the first day of the period for which incurrence thereof, the Consolidated Fixed Charge Coverage Ratio of the Company is calculated(i) greater than 2.1 to 1.0 at any time thereafter and on or prior to June 18, 2010 and (ii) the incurrencethereafter, re- payment or retirement of any other Indebtedness by the Company or any Subsidiary since the first day of such period as if such Indebtedness was incurred, repaid or retired at the beginning of such period (except that, in making such computation, greater than 2.2 to 1.0; provided that the amount of Indebtedness under any revolving credit facility shall (other than Acquired Indebtedness) that may be computed based upon incurred since the average daily balance Series A Issue Date in reliance on the preceding proviso by Restricted Subsidiaries of such Indebtedness during such period) and (iii) the acquisition (whether by purchase, merger or otherwise) or disposition (whether by sale, merger or otherwise) of any company, entity or business acquired or disposed of by the Company (other than QD Capital) that have not Guaranteed the Securities in compliance with Section 4.14 or any Sub- sidiary or ACMI Contracted Aircraft acquired by the Company or any Subsidiary, in any such case, since the first day of such period, as if such acquisition or disposition of a company, en- tity or business, or such acquisition of an ACMI Contracted Aircraft acquired by the Company or any Subsidiary, in any such case, since the first day of such period, as if such acquisi- tion or disposition of a company, entity or business, or such acquisition of an ACMI Contracted Aircraft occurred at the be- ginning of such period; provided, however, that pro forma ef- fect Section 4.18 shall not be given to a number of ACMI Contracted Aircraft exceeding five in exceed $20.0 million at any four fiscal quartersone time outstanding. (b) The Company will shall not, and shall not permit QD Capital or any Subsidiary to Guarantor to, directly or indirectly, incur any Indebtedness that by its terms (including or by the terms of any Acquired agreement governing such Indebtedness) is expressly subordinated in right of payment to any other than Permitted Subsidiary Indebtedness of the Company, QD Capital or such Guarantor, as the case may be, unless such Indebtedness is also by its terms (or by the terms of any agreement governing such Indebtedness) made expressly subordinate to the Securities or the applicable Guarantee, as the case may be, to the same extent and in the same manner as such Indebtedness is subordinated to other Indebtedness of the Company, QD Capital or such Guarantor, as the case may be, provided that, for purposes of this Section 4.04(b), no Indebtedness will be deemed to be subordinated in right of payment to any other Indebtedness of the Company, QD Capital or any Guarantor solely by virtue of such Indebtedness being unsecured or by virtue of the fact that the holders of such Indebtedness have entered into one or more intercreditor agreements giving one or more of such holders priority over the other holders in the collateral held by them.