Limitation on Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall not, and shall not permit any of its Subsidiaries (other than any Excluded Subsidiaries) to, directly or indirectly, create, incur, assume, guarantee, become liable, contingently or otherwise, with respect to, or otherwise become responsible for payment of (collectively, “incur”) any Indebtedness (including, without limitation, Acquired Indebtedness) and the Company shall not permit any of its Subsidiaries (other than any Excluded Subsidiaries) to issue any shares of Preferred Stock, in each case other than Permitted Indebtedness. (b) Notwithstanding Section 4.09(a) hereof, 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 Indebtedness, the Company or any of its Subsidiaries may incur Indebtedness (including, without limitation, Acquired Indebtedness), and the Company’s Subsidiaries may issue Preferred Stock, in each case if on the date of the incurrence of such Indebtedness or Preferred Stock, after giving effect to the incurrence thereof and the use of proceeds thereof, the Consolidated Net Corporate Leverage Ratio of the Company and its Subsidiaries shall not exceed 4.00 to 1.00 calculated on a Pro Forma Basis.
Appears in 1 contract
Sources: Indenture (Walker & Dunlop, Inc.)
Limitation on Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, 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 Acquired Indebtedness and the issuance of Disqualified Stock), except that (x) the Company may incur Indebtedness if, at the time of such event, the Fixed Charge Coverage Ratio for the immediately preceding four full fiscal quarters for which internal financial statements are available, taken as one accounting period, would have been equal to at least 2.0 to 1.0 and (y) OCC may incur Indebtedness if, at the time of such event, the OCC Fixed Charge Coverage Ratio for the immediately preceding four full fiscal quarters for which internal financial statements are available, taken as one accounting period, would have been equal to at least 2.0 to 1.0. In making the foregoing calculation for any four-quarter period that includes the Issue Date, pro forma effect will be given to the Offering, as if such transactions had occurred at the beginning of such four-quarter period. In addition (but without duplication), in making the foregoing calculation, pro forma effect will be given to: (i) the incurrence of such Indebtedness and (if applicable) the application of the net proceeds therefrom, including to refinance other Indebtedness, as if such Indebtedness was incurred and the application of such proceeds occurred at the beginning of such four-quarter period, (ii) the incurrence, repayment or retirement of any other Indebtedness by the Company or its Restricted Subsidiaries since the first day of such four- quarter period as if such Indebtedness was incurred, repaid or retired at the beginning of such four-quarter period 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 its Restricted Subsidiaries, as the case may be, since the first day of such four-quarter period, as if such acquisition or disposition occurred at the beginning of such four-quarter period. In making a computation under the foregoing clause (i) or (ii), (A) the amount of Indebtedness under a revolving credit facility will be computed based on the average daily balance of such Indebtedness during such four-quarter period, (B) if such Indebtedness bears, at the option of the Company, a fixed or floating rate of interest, interest thereon will be computed by applying, at the option of the Company, either the fixed or floating rate and (C) the amount of any Indebtedness that bears interest at a floating rate will be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness if such Hedging Obligations have a remaining term at the date of determination in excess of 12 months). Notwithstanding the foregoing, the Company may, and may permit its Restricted Subsidiaries to, incur the following Indebtedness ("Permitted Indebtedness"):
(i) Indebtedness of the Company or any Restricted Subsidiary under the Bank Credit Facilities or one or more other credit facilities (and the incurrence by any Restricted Subsidiary of guarantees thereof) in an aggregate principal amount at any one time outstanding not to exceed $275,000,000, less any amounts applied to the permanent reduction of such credit facilities pursuant to Section 1016;
(ii) Indebtedness of the Company or any Restricted Subsidiary outstanding on the Issue Date and listed on Schedule A to this Indenture (other than Indebtedness described under clause (i) above);
(iii) Indebtedness owed by the Company to any Excluded Subsidiaries) toWholly Owned Restricted Subsidiary or owed by any Restricted Subsidiary to the Company or a Wholly Owned Restricted Subsidiary (provided that such Indebtedness is held by the Company or such Restricted Subsidiary); PROVIDED, directly or indirectlyHOWEVER, createthat any Indebtedness of the Company owing to any such Restricted Subsidiary is unsecured and subordinated in right of payment from and after such time as the Senior Notes shall become due and payable (whether at Stated Maturity, incuracceleration, assume, guarantee, become liable, contingently or otherwise) to the payment and performance of the Company's obligations under the Senior Notes;
(iv) Indebtedness pursuant to the Senior Notes;
(v) Indebtedness of the Company or any Restricted Subsidiary under Hedging Obligations incurred in the ordinary course of business;
(vi) Indebtedness of the Company or any Restricted Subsidiary consisting of guarantees, indemnities or obligations in respect of purchase price adjustments in connection with respect tothe acquisition or disposition of assets, or otherwise become responsible for payment of (collectively, “incur”) any Indebtedness (including, without limitation, Acquired Indebtednessshares of Capital Stock;
(vii) either (A) Capitalized Lease Obligations of the Company or any Restricted Subsidiary or (B) Indebtedness under purchase money mortgages or secured by purchase money security interests so long as (x) such Indebtedness is not secured by any property or assets of the Company or any Restricted Subsidiary other than the property and assets so acquired and (y) such Indebtedness is created within 60 days of the acquisition of the related property; PROVIDED that aggregate amount of Indebtedness under clauses (A) and the Company shall (B) does not permit exceed 5% of Consolidated Tangible Assets at any of its Subsidiaries (other than any Excluded Subsidiaries) to issue any shares of Preferred Stock, in each case other than Permitted Indebtedness.one time outstanding;
(bviii) Notwithstanding Guarantees by any Restricted Subsidiary made in accordance with Section 4.09(a1021;
(ix) hereof, if so long as there exists no Default or Event of Default shall have occurred both before and be continuing at the time of or as a consequence of the incurrence of any such Indebtedness, the Company or any of its Subsidiaries may incur Indebtedness (including, without limitation, Acquired Indebtedness), and the Company’s Subsidiaries may issue Preferred Stock, in each case if on the date of the incurrence of such Indebtedness or Preferred Stock, after giving effect to the incurrence thereof of such Indebtedness, Non-Recourse Arena Financing, in an aggregate amount not to exceed $130,000,000, plus capitalized interest which accrues after incurring such Non-Recourse Arena Financing and prior to the use date the Indebtedness represented thereby commences to pay cash interest;
(x) so long as there exists no Default or Event of proceeds thereofDefault before and after giving effect to the incurrence of such Indebtedness, the Consolidated Net Corporate Leverage Ratio Non-Recourse Film Indebtedness;
(xi) Indebtedness of the Company and its Subsidiaries shall not permitted by any other clause of this covenant, in an aggregate principal amount not to exceed $5,000,000 at any one time outstanding; and
(xii) any renewals, extensions, substitutions, refinancings or replacements (each, for purposes of this clause, a "refinancing") of any outstanding Indebtedness, in whole or in part, other than Indebtedness incurred pursuant to clause (i), (iii), (v), (vi), (vii), (ix), (x) or (xi) of this definition, including any successive refinancings thereof, so long as (A) any such new Indebtedness is in a principal amount that does not exceed 4.00 the principal amount so refinanced, plus the amount of any premium required to 1.00 calculated on be paid in connection with such refinancing pursuant to the terms of the Indebtedness refinanced or the amount of any premium reasonably determined by the Company as necessary to accomplish such refinancing, plus the amount of the expenses of the Company incurred in connection with such refinancing, (B) in the case of any refinancing of Subordinated Indebtedness, such new Indebtedness is made subordinate to the Senior Notes at least to the same extent as the Indebtedness being refinanced and (C) such refinancing Indebtedness does not have an Average Life less than the Average Life of the Indebtedness being refinanced and does not have a Pro Forma Basisfinal scheduled maturity earlier than the final scheduled maturity, or permit redemption at the option of the holder earlier than the earliest date of redemption at the option of the holder, of the Indebtedness being refinanced. For purposes of determining compliance with this covenant, in the event that an item of Indebtedness outstanding or to be incurred meets the criteria of more than one of the types of Indebtedness described in the above clauses, the Company, in its sole discretion, may classify such item of Indebtedness and only be required to include the amount and type of such Indebtedness in one of such clauses.
Appears in 1 contract
Limitation on Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, 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 Acquired Indebtedness and the issuance of its Subsidiaries Disqualified Stock), except that the Company may incur Indebtedness and a Subsidiary Guarantor (other than any Excluded SAH Acquisition II and its Restricted Subsidiaries) to, directly or indirectly, create, incur, assume, guarantee, become liable, contingently or otherwise, with respect to, or otherwise become responsible for payment of (collectively, “incur”) any Indebtedness (including, without limitation, Acquired may incur Indebtedness) and the Company shall not permit any of its Subsidiaries (other than any Excluded Subsidiaries) to issue any shares of Preferred Stock, in each case other if, after giving effect to such event, the Indebtedness to EBITDA Ratio would be less than Permitted Indebtedness(i) 6.5 to 1.0, for any incurrence occurring through Marc▇ ▇▇, ▇▇▇▇, (▇▇) ▇.
▇5 to 1.0, for any incurrence occurring after March 15, 2000 and prior to Marc▇ ▇▇, ▇▇▇▇, ▇▇ (b▇▇▇) Notwithstanding Section 4.09(a) hereof▇.▇ to 1.0, for any incurrence occurring on March 15, 2002 or thereafter. In making the foregoing calculation for any four-quarter period that includes the Closing Date, pro forma effect will be given to the offerings closed by the Company at or about the Closing Date, as if no Default or Event of Default shall have such transactions had occurred and be continuing at the time beginning of or as a consequence of such four-quarter period. In addition (but without duplication), in making the foregoing calculation, pro forma effect will be given to: (i) the incurrence of such Indebtedness and (if applicable) the application of the net proceeds therefrom, including to refinance other Indebtedness, as if such Indebtedness was incurred and the application of such proceeds occurred at the beginning of such four-quarter period, (ii) the incurrence, repayment or retirement of any other Indebtedness by the Company or its Restricted Subsidiaries since the first day of such four-quarter period as if such Indebtedness was incurred, repaid or retired at the beginning of such four-quarter period 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 its Restricted Subsidiaries, as the case may be, since the first day of such four-quarter period, as if such acquisition or disposition occurred at the beginning of such four-quarter period. In making a computation under the foregoing clause (i) or (ii), (A) the amount of Indebtedness under a revolving credit facility will be computed based on the average daily balance of such Indebtedness during such four-quarter period, (B) if such Indebtedness bears, at the option of the Company, a fixed or floating rate of interest, interest thereon will be computed by applying, at the option of the Company, either the fixed or floating rate and (C) the amount of any Indebtedness that bears interest at a floating rate will be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness if such Hedging Obligations have a remaining term at the date of determination in excess of 12 months). Notwithstanding the foregoing, the Company may, and may permit its Restricted Subsidiaries (except as specified below) to, incur the following Indebtedness ("Permitted Indebtedness"):
(i) Indebtedness of the Company or any Subsidiary Guarantor (other than SAH Acquisition II and its Restricted Subsidiaries) under a Senior Credit Facility in an aggregate principal amount (or accredited value, as applicable) at any time outstanding not to exceed $20.0 million less the aggregate amount of all Net Cash Proceeds for Assets Sales applied to permanently reduce such Indebtedness pursuant to the provisions of Section 1016 of this Indenture;
(ii) Indebtedness represented by the Notes and the Subsidiary Guarantees;
(iii) Existing Indebtedness (other than Indebtedness referred to in clauses (i) and (ii) above);
(iv) the incurrence of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace, any Indebtedness that is permitted to be incurred under clause (ii) or (iii) above;
(v) Indebtedness owed by the Company to any Wholly Owned Restricted Subsidiary or owed by any Restricted Subsidiary to the Company or a Wholly Owned Restricted Subsidiary (provided that such Indebtedness is held by the Company or such Restricted Subsidiary); provided, however, that any Indebtedness of the Company owing to any such IndebtednessRestricted Subsidiary is unsecured and subordinated in right of payment from and after such time as the Notes shall become due and payable (whether at Stated Maturity, acceleration, or otherwise) to the payment and performance of the Company's obligations under the Notes;
(vi) Indebtedness of the Company or any Restricted Subsidiary under Hedging Obligations incurred in the ordinary course of business; or
(vii) the incurrence by the Company or any of its the Restricted Subsidiaries may incur of Indebtedness represented by Capital Lease Obligations (including, without limitation, Acquired Indebtednesswhether or not incurred pursuant to Sale and Leaseback Transactions), and the Company’s Subsidiaries may issue Preferred Stockmortgage financings or purchase money obligations, in each case if on incurred for the date purpose of financing or refinancing all or any part of the incurrence purchase price or cost of such Indebtedness or Preferred Stock, after giving effect to construction and improvement of property used in the incurrence thereof and the use of proceeds thereof, the Consolidated Net Corporate Leverage Ratio business of the Company and its Subsidiaries shall or such Restricted Subsidiary or any Permitted Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed 4.00 to 1.00 calculated on a Pro Forma Basis$3.0 million at any one time outstanding.
Appears in 1 contract
Sources: Indenture (Shop at Home Inc /Tn/)