Limitation on Incurrence of Indebtedness. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, issue any Indebtedness (other than the Indebtedness represented by the Senior Notes and the Series C Senior Notes in an amount not to exceed $270 million in the aggregate) unless the Company's Cash Flow Coverage Ratio for its four full fiscal quarters next preceding the date such additional Indebtedness is issued would have been at least 2.00 to 1, if such date is on or prior to November 15, 1998, and 2.25 to 1 thereafter, in each case determined on a Pro Forma basis (including, for this purpose, any other Indebtedness incurred since the end of the applicable four quarter period) as if such additional Indebtedness and any other Indebtedness issued since the end of such four- quarter period had been issued at the beginning of such four-quarter period. (b) Section 4.07(a) shall not apply to the issuance of (i) Indebtedness of the Company and/or its Restricted Subsidiaries as measured on such date of issuance in an aggregate principal amount outstanding on any such date of issuance not exceeding the greater of (A) $115,000,000 aggregate principal amount pursuant to the New Credit Agreement and (B) an aggregate principal amount up to the sum of (1) 85% of the book value of the Receivables of the Company and its Restricted Subsidiaries on a consolidated basis and (2) 65% of the book value of the inventories of the Company and its Restricted Subsidiaries on a consolidated basis; provided that the aggregate principal amount of Indebtedness outstanding under this clause (i) together with the aggregate principal amount of Indebtedness outstanding under clause (iv) below shall not exceed $120.0 million in aggregate principal amount at any one time outstanding; (ii) Indebtedness of the Company and its Restricted Subsidiaries pursuant to any Receivables Financing; (iii) Indebtedness of the Company and its Restricted Subsidiaries in connection with capital leases, sale and leaseback transactions, purchase money obligations, capital expenditures or similar financing transactions relating to (A) their properties, assets and rights as of the date of original issuance of the Series C Senior Notes up to $5,000,000 in aggregate principal amount or (B) their properties, assets and rights acquired after the date of original issuance of the Series C Senior Notes, provided that the aggregate principal amount of such Indebtedness under this Section 4.07(b)(iii)(B) does not exceed 100% of the cost of such properties, assets and rights; (iv) additional Indebtedness of the Company and its Restricted Subsidiaries in an aggregate principal amount up to $25,000,000 (all or any portion of which may be issued as additional Indebtedness under the New Credit Agreement); provided that the aggregate principal amount of Indebtedness outstanding under this clause (iv) together with the aggregate principal amount of Indebtedness outstanding under clause (i) above shall not exceed $120.0 million in aggregate principal amount at any one time outstanding; and (v)
Appears in 1 contract
Limitation on Incurrence of Indebtedness. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, issue to Issue any Indebtedness (other than the Indebtedness represented by the Senior Securities, the Old Notes and the Series C Senior Notes in an amount not to exceed $270 million in the aggregateSecurities) unless unless: the Company's Cash Flow Coverage Ratio for its four full fiscal quarters next preceding the date such additional Indebtedness is issued Issued would have been at least 2.00 least:
(i) 1.7 to 1, if such date is on or prior between the date of original Issuance of the Securities under this Indenture and June 30, 1999,
(ii) 1.85 to November 151, 1998from July 1, 1999 through June 30, 2001, or
(iii) 2.0 to 1, from July 1, 2001 and 2.25 to 1 thereafter, in each case determined on a Pro Forma basis Basis (including, for this purpose, including a pro forma application of proceeds of such Indebtedness and any other Indebtedness incurred since the end of the applicable four quarter periodperiod including, without limitation, the earnings of any business acquired by the Company with the proceeds of such Indebtedness) as if such additional Indebtedness and any other Indebtedness issued since the end of such four- the applicable four quarter period had been issued Issued at the beginning of such four-quarter period.
(b) Section 4.07(a) shall will not apply to the issuance of Issuance of:
(i) Indebtedness of the Company and/or its Restricted Subsidiaries as measured on such date of issuance in an aggregate principal amount outstanding on any such date of issuance not exceeding up to the greater of (A) $115,000,000 75.0 million in aggregate principal amount pursuant to the Credit Agreement or the New Credit Agreement Agreement, and (B) an aggregate principal amount up to the sum of of: (1x) 85% of the book value of the Receivables of the Company and its Restricted Subsidiaries Subsidiaries' Receivables on a consolidated basis basis, and (2y) 65% of the book value of the inventories of the Company and its Restricted Subsidiaries Subsidiaries' inventories on a consolidated basis; provided that the aggregate principal amount of Indebtedness outstanding under this clause (i) together with the aggregate principal amount of Indebtedness outstanding under clause (iv) below shall not exceed $120.0 million in aggregate principal amount at any one time outstanding; ;
(ii) Indebtedness of the Company and its Restricted Subsidiaries pursuant to any Receivables Financing; ;
(iii) Indebtedness of the Company and its Restricted Subsidiaries in connection with capital leases, sale and leaseback transactions, purchase money obligations, capital expenditures or similar financing transactions relating to to:
(A) their properties, assets and rights as of the date of original issuance Issuance of the Series C Senior Notes Securities up to $5,000,000 20,000,000 in aggregate principal amount or amount, or
(B) their properties, assets and rights acquired after the date of original issuance Issuance of the Series C Senior NotesSecurities, provided that the aggregate principal amount of such Indebtedness under this Section 4.07(b)(iii)(B) does not exceed 100% of the cost of such properties, assets and rights; :
(iv) additional Indebtedness of the Company and its Restricted Subsidiaries in an aggregate principal amount up to $25,000,000 (all or any portion of which may be issued Issued as additional Indebtedness under the Credit Agreement or the New Credit Agreement); provided that the aggregate principal amount of Indebtedness outstanding under this clause (iv) together with the aggregate principal amount of Indebtedness outstanding under clause (i) above shall not exceed $120.0 million in aggregate principal amount at any one time outstanding; and (v)and
Appears in 1 contract
Sources: Indenture (Jordan Industries Inc)
Limitation on Incurrence of Indebtedness. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, issue create, incur, assume or directly or indirectly guarantee or in any other manner become directly or indirectly liable for (“incur”) any Indebtedness (other than the Indebtedness represented by the Senior Notes including Acquired Debt) if, immediately after giving pro forma effect to such incurrence and the Series C Senior Notes in an amount not application of the proceeds thereof, the Debt to exceed $270 million in the aggregate) unless the Company's Operating Cash Flow Coverage Ratio for its four full fiscal quarters next preceding the date such additional Indebtedness is issued would have been at least 2.00 to 1, if such date is on or prior to November 15, 1998, and 2.25 to 1 thereafter, in each case determined on a Pro Forma basis (including, for this purpose, any other Indebtedness incurred since the end of the applicable four quarter periodCompany and its Restricted Subsidiaries is more than 7.00 to 1.0, provided that Non-Guarantors may not incur Indebtedness under this Section 4.07(a) as if if, after giving pro forma effect to such additional incurrence (including a pro forma application of the net proceeds therefrom), more than an aggregate of the greater of (a) $220.0 million and (b) 2.0% of Consolidated Total Assets of Indebtedness and any other Indebtedness issued since the end of such four- quarter period had been issued Non-Guarantors would be outstanding pursuant to this Section 4.07(a) at the beginning of such four-quarter periodtime.
(b) Section 4.07(a) shall will not apply to the issuance incurrence of any of the following (collectively, “Permitted Indebtedness”):
(i) Indebtedness of the Company and/or its Restricted Subsidiaries as measured on such date of issuance and the Subsidiary Guarantors incurred under Senior Credit Facilities, and Refinancing Indebtedness in respect thereof, in an aggregate principal amount at any time outstanding on any such date of issuance not exceeding to exceed (a) $400,000,000 plus (b) the greater of (Ax) $115,000,000 aggregate principal amount pursuant to the New Credit Agreement and (B) an aggregate principal amount up to the sum of (1) 85% of the book value of the Receivables of the Company and its Restricted Subsidiaries on a consolidated basis and (2) 65% of the book value of the inventories of the Company and its Restricted Subsidiaries on a consolidated basis; provided that the aggregate principal amount of Indebtedness outstanding under the Senior Credit Agreement on the Issue Date (assuming, in the case of any revolving credit facility thereunder, that such facility is fully drawn) and (y) an amount equal to Operating Cash Flow of the Company and its Restricted Subsidiaries for the most recent Test Period divided by two (2), determined on a pro forma basis with the pro forma adjustments set forth in clause (ii) of the definition of “Debt to Operating Cash Flow Ratio” and as determined in good faith by the Company, times 3.50 plus (c) in the case of any Refinancing Indebtedness incurred under this clause (i) together with or any portion thereof, the aggregate principal amount of Indebtedness outstanding under clause (iv) below shall not exceed $120.0 million fees, underwriting discounts, premiums and other costs and expenses incurred in aggregate principal amount at any one time outstanding; connection with such Refinancing Indebtedness;
(ii) Indebtedness of the Company represented by (a) the Notes issued on the Issue Date, (b) the 2031 Notes outstanding on the Issue Date, (c) the 2030 Notes outstanding on the Issue Date, (d) the 2026 Notes outstanding on the Issue Date, (e) the 2029 Secured Notes outstanding on the Issue Date, (f) the 2032 Secured Notes outstanding on the Issue Date and (g) Indebtedness of any subsidiary guarantor represented by a subsidiary guarantee in respect thereof or in respect of Additional Notes incurred in accordance with this Indenture;
(iii) Indebtedness of the Company or any of its Restricted Subsidiaries consisting of (a) the financing of insurance premiums or (b) take-or-pay obligations contained in supply arrangements, in each case incurred in the ordinary course of business or consistent with past practice;
(iv) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that:
(a) if the Company or any Subsidiary Guarantor is the obligor on such Indebtedness and such Indebtedness is owed to or held by a Restricted Subsidiary that is not a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of the Company, or the Guarantee of such Subsidiary Guarantor, in the case of a Subsidiary Guarantor; and
(i) any subsequent issuance or transfer of Capital Stock that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary thereof and (ii) any transfer or other disposition of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary thereof, shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (iv);
(v) Indebtedness of the Company consisting of guarantees of Indebtedness of any Restricted Subsidiary and Indebtedness of any Restricted Subsidiary consisting of guarantees of any Indebtedness of the Company or another Restricted Subsidiary, which Indebtedness of the Company or another Restricted Subsidiary has been incurred in accordance with the provisions of this Indenture;
(vi) Hedging Obligations (not for speculative purposes);
(vii) Permitted Purchase Money Indebtedness, Capital Lease Obligations, sale and leaseback transactions and mortgage financings so long as the aggregate amount of all such Permitted Purchase Money Indebtedness, Capital Lease Obligations and mortgage financings together with any Refinancing Indebtedness in respect thereof does not exceed the greater of $250.0 million and 2.25% of Consolidated Total Assets calculated at the time of incurrence at any one time outstanding;
(viii) Acquisition Debt of the Company or a Restricted Subsidiary if (w) such Acquisition Debt is incurred within 270 days after the date on which the related definitive acquisition agreement or LMA, as the case may be, was entered into by the Company or such Restricted Subsidiary, (x) the aggregate principal amount of such Acquisition Debt is no greater than the aggregate principal amount of Acquisition Debt set forth in a notice from the Company to the Trustee (an “Incurrence Notice”) within 30 days after the date on which the related definitive acquisition agreement or LMA, as the case may be, was entered into by the Company or such Restricted Subsidiary, which notice shall be executed on the Company’s behalf by the chief financial officer of the Company in such capacity and shall describe in reasonable detail the acquisition or LMA, as the case may be, which such Acquisition Debt will be incurred to finance, (y) after giving pro forma effect to the acquisition or LMA, as the case may be, described in such Incurrence Notice, the Company or such Restricted Subsidiary could have incurred such Acquisition Debt under this Indenture as of the date upon which the Company delivers such Incurrence Notice to the Trustee and (z) such Acquisition Debt is utilized solely to finance the acquisition or LMA, as the case may be, described in such Incurrence Notice (including to repay or refinance Indebtedness or other obligations incurred in connection with such acquisition or LMA, as the case may be, and to pay related fees and expenses);
(ix) Indebtedness of (x) the Company or any Restricted Subsidiary incurred or issued to finance an acquisition or (y) Persons that are acquired by the Company or any Restricted Subsidiaries or merged with or into or consolidated with the Company or a Restricted Subsidiary in accordance with the terms of this Indenture; provided that such Indebtedness, together with any Refinancing Indebtedness in respect thereof, is in an aggregate amount not to exceed (i) the greater of $250.0 million and 2.25% of Consolidated Total Assets at any time outstanding plus (ii) unlimited additional Indebtedness if after giving pro forma effect to such acquisition, merger or consolidation and incurrence of Indebtedness (for the avoidance of doubt, initially classified as incurred under either clause (i) or (ii) when incurred), either:
(a) the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Debt to Operating Cash Flow Ratio test set forth in the first paragraph of this covenant (measured at the time of entry into definitive documentation);
(b) the Debt to Operating Cash Flow Ratio of the Company and the Restricted Subsidiaries (measured at the time of entry into definitive documentation) would not be greater than immediately prior to such acquisition, merger or consolidation; or
(c) such Indebtedness is Acquired Debt of a Person or any of its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary and not incurred in contemplation thereof (provided that, in the case of this clause (c), the only obligors with respect to such Indebtedness shall be those Persons who were obligors of such Indebtedness prior to such Person becoming a Restricted Subsidiary, on the date of consummation of such acquisition, merger, consolidation or other combination);
(x) Refinancing Indebtedness in respect of Indebtedness permitted by the first paragraph of this covenant, clause (ii) above, clause (iii) above, clause (vii) above, clause (viii) above, clause (ix) above, this clause (x) or clauses (xi), (xvi), (xix), (xxi) or (xxii) below;
(xi) Indebtedness of the Company or any Subsidiary Guarantor existing on the Issue Date;
(xii) Indebtedness consisting of customary indemnification, obligations in respect of earn-outs, adjustments of purchase price or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business or assets;
(xiii) Indebtedness incurred by the Company or any Restricted Subsidiary constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including without limitation to letters of credit in respect to workers’ compensation claims or self-insurance, or other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims; provided, however, that upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 60 days following such drawing or incurrence;
(xiv) Indebtedness under performance and surety bonds and completion guarantees provided by the Company or any Restricted Subsidiary in the ordinary course of business;
(xv) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from customary cash management services or the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within ten Business Days;
(xvi) Indebtedness of Non-Guarantors, together with any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed the greater of (a) $50.0 million and (b) 0.45% of Consolidated Total Assets of Non-Guarantors at any time outstanding;
(xvii) Indebtedness incurred by a Securitization Subsidiary in a Qualified Securitization Financing that is not recourse (except for Standard Securitization Undertakings) to the Company or any of its Restricted Subsidiaries or arising under any Receivables Facility;
(xviii) Indebtedness of the Company or a Restricted Subsidiary to the extent the proceeds of such Indebtedness are deposited and used to defease or discharge the Notes under Article VIII or otherwise prepay the Notes;
(xix) Indebtedness in an aggregate outstanding principal amount which, when taken together with any Refinancing Indebtedness in respect thereof and the principal amount of all other Indebtedness incurred pursuant to this clause (xix) and then outstanding, will not exceed 100% of the Net Cash Proceeds received by the Company from the issuance or sale (other than to a Restricted Subsidiary) of its Capital Stock (other than Disqualified Stock or Designated Preferred Stock) or otherwise contributed to the equity (other than through the issuance of Disqualified Stock or Designated Preferred Stock) of the Company, in each case, subsequent to the Issue Date; provided, however, that (a) any such Net Cash Proceeds that are so received or contributed shall not increase the amount available for making Restricted Payments to the extent the Company and its Restricted Subsidiaries incur Indebtedness in reliance thereon and (b) any Net Cash Proceeds that are so received or contributed shall be excluded for purposes of incurring Indebtedness pursuant to this clause to the extent such net cash proceeds or cash have been applied to make Restricted Payments;
(xx) unsecured Indebtedness of the Company owing to any Receivables Financing; then existing or former director, officer or employee of the Company or any of its Restricted Subsidiaries or their respective assigns, estates, heirs or their current or former spouses for the repurchase, redemption or other acquisition or retirement for value of any Capital Stock held by them that would have otherwise been permitted under Section 4.05;
(iiixxi) Indebtedness of the Company and its Restricted Subsidiaries in connection with capital leasesaddition to that described in clauses (i) through (xx) above, sale and leaseback transactions(xxii) below, purchase money obligationsand any renewals, capital expenditures extensions, substitutions, refundings, refinancings or similar financing transactions relating to (A) their propertiesreplacements of such Indebtedness, assets and rights so long as of the date of original issuance of the Series C Senior Notes up to $5,000,000 in aggregate principal amount or (B) their properties, assets and rights acquired after the date of original issuance of the Series C Senior Notes, provided that the aggregate principal amount of all such Indebtedness under incurred pursuant to this Section 4.07(b)(iii)(B) clause (xxi), together with any Refinancing Indebtedness in respect thereof, does not exceed 100the greater of $250.0 million and 2.25% of Consolidated Total Assets calculated at the cost time of such properties, assets and rights; (iv) additional Indebtedness of the Company and its Restricted Subsidiaries in an aggregate principal amount up to $25,000,000 (all or any portion of which may be issued as additional Indebtedness under the New Credit Agreement); provided that the aggregate principal amount of Indebtedness outstanding under this clause (iv) together with the aggregate principal amount of Indebtedness outstanding under clause (i) above shall not exceed $120.0 million in aggregate principal amount incurrence at any one time outstanding; and
(xxii) Indebtedness in respect of Tax Advantaged Transactions; provided that the aggregate amount of such Indebtedness, together with any Refinancing Indebtedness in respect thereof, together with the aggregate amount of Investments made in connection with Tax Advantaged Transactions pursuant to clause (xx) of “Permitted Investments” shall not exceed an aggregate amount equal to the greater of $550.0 million and 5.0% of Consolidated Total Assets.
(c) For purposes of determining compliance with this covenant:
(i) in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness permitted pursuant to clauses (i) through (xxii) above, the Company shall, in its sole discretion, be permitted to classify such item of Indebtedness in any manner that complies with this covenant and may from time to time reclassify such items of Indebtedness in any manner that would comply with this covenant at the time of such reclassification; for the avoidance of doubt, any incurrence of Indebtedness may, if applicable, be classified or reclassified in part as being incurred under Section 4.07(a) and in part under one or more categories of Permitted Indebtedness;
(ii) Indebtedness permitted by this covenant need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this covenant permitting such Indebtedness;
(iii) in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in this covenant, the Company, in its sole discretion, shall classify such Indebtedness and only be required to include the amount of such Indebtedness in one of such clauses;
(iv) accrual of interest (including interest paid-in-kind) and the accretion of accreted value will not be deemed to be an incurrence of Indebtedness for purposes of this covenant; and
(v) the principal amount of any Disqualified Stock of the Company or a Restricted Subsidiary will be equal to the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof.
(d) Notwithstanding any other provision of this covenant: (i) the maximum amount of Indebtedness that the Company or any Restricted Subsidiary of the Company may incur pursuant to this covenant shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies; and (vii) Indebtedness incurred pursuant to the Senior Credit Agreement prior to or on the Issue Date shall be treated as initially incurred pursuant to Section 4.07(b)(i)(b).
Appears in 1 contract
Sources: Indenture (Gray Media, Inc)
Limitation on Incurrence of Indebtedness. (a) The Company shall not, and shall not cause or permit any Restricted Subsidiary to, issue directly or indirectly, incur any Indebtedness (other than the Indebtedness represented by the Senior Notes and the Series C Senior Notes in an amount not to exceed $270 million in the aggregate) unless the Company's Cash Flow Coverage Ratio for its four full fiscal quarters next preceding the date such additional Indebtedness is issued would have been at least 2.00 to 1including Acquired Indebtedness), if such date is on or prior to November 15, 1998, and 2.25 to 1 thereafter, in each case determined on a Pro Forma basis (including, for this purpose, any other Indebtedness incurred since the end of the applicable four quarter period) as if such additional Indebtedness and any other Indebtedness issued since the end of such four- quarter period had been issued at the beginning of such four-quarter period.except:
(b) Section 4.07(a) shall not apply to the issuance of (i) Indebtedness of the Company and/or its Company, if immediately after giving effect to the incurrence of such Indebtedness and the receipt and application of the net proceeds thereof (including, without limitation, the application or use of the net proceeds therefrom to repay Indebtedness, to consummate an Asset Acquisition or to make any Restricted Subsidiaries as measured Payment), (a) in the case of any incurrence of Indebtedness on such date of issuance in an aggregate principal amount outstanding on any such date of issuance not exceeding or after September 30, 2002 only, the greater ratio of (Ax) $115,000,000 aggregate principal amount pursuant Total Consolidated Indebtedness to the New Credit Agreement and (By) an aggregate principal amount up to the sum of (1) 85% of the book value of the Receivables of the Company and its Restricted Subsidiaries on a consolidated basis and (2) 65% of the book value of the inventories of the Company and its Restricted Subsidiaries on a consolidated basis; provided that the aggregate principal amount of Indebtedness outstanding under this clause Annualized Pro Forma Consolidated Operating Cash Flow would be less than (i) together with 30.0 to 1.0, if the aggregate principal amount of Indebtedness outstanding under clause is to be incurred on or after September 30, 2002 and prior to December 31, 2002, or (ii) 24.0 to 1.0, if the Indebtedness is to be incurred on or after December 31, 2002 and prior to December 31, 2003, or (iii) 10.25.0 to 1.0, if the Indebtedness is to be incurred on or after December 31, 2003 and prior to December 31, 2004, or (iv) below shall not exceed $120.0 million 5.5 to 1.0, if the Indebtedness is to be incurred on or after December 31, 2004, or (b) in aggregate principal amount at the case of any one time outstanding; incurrence of Indebtedness prior to March 31, 2005 only, Total Consolidated Indebtedness would be equal to or less than 75% of Total Invested Capital ;
(ii) Indebtedness of the Company and its the Restricted Subsidiaries pursuant incurred under one or more Senior Credit Facilities in an aggregate amount at any one time outstanding not to any Receivables Financing; exceed $600 million in the aggregate for all such Senior Credit Facilities;
(iii) Indebtedness of the Company and its Restricted Subsidiaries outstanding from time to time pursuant to any Vendor Credit Arrangement;
(iv) Indebtedness owed by the Company to any Restricted Subsidiary or Indebtedness owed by a Restricted Subsidiary to the Company or another Restricted Subsidiary; provided, that upon either (x) the transfer or other disposition by such Restricted Subsidiary or the Company of any Indebtedness so permitted under this clause (iv) to a Person other than the Company or another Restricted Subsidiary or (y) the issuance (other than directors' qualifying shares), sale, transfer or other disposition of shares of Capital Stock or other ownership interests (including by consolidation or merger) of such Restricted Subsidiary to a Person other than the Company or another such Restricted Subsidiary, the exception provided by this clause (iv) shall no longer be applicable to such Indebtedness and such Indebtedness shall be deemed to have been incurred at the time of any such issuance, sale, transfer or other disposition, as the case may be;
(v) Indebtedness of the Company or any Restricted Subsidiary under any Hedging Agreement to the extent entered into to protect the Company or such Restricted Subsidiary from fluctuations in interest rates on any other Indebtedness permitted under the Indenture (including the Notes) and not for speculative purposes;
(vi) Indebtedness incurred to refinance any Indebtedness incurred under the prior clause (i) or (iii) above, the Notes or the Guarantees; provided, that (x) such Indebtedness does not exceed the principal amount (or accreted value, if less) of the Indebtedness so refinanced plus the amount of any premium required to be paid in connection with capital leases, sale and leaseback transactions, purchase money obligations, capital expenditures or similar financing transactions relating such refinancing pursuant to (A) their properties, assets and rights as the terms of the date Indebtedness being refinanced or the amount of original issuance any premium reasonably determined by the issuer of such Indebtedness as necessary to accomplish such refinancing by means of a tender offer, exchange offer, or privately negotiated repurchase, plus the expenses of such issuer reasonably incurred in connection therewith and (y)
(1) in the case of any refinancing of Indebtedness that is pari passu with the Series E Notes, such refinancing Indebtedness is made pari passu with or subordinate in right of payment to the Series E Notes, and, in the case of any refinancing of Indebtedness that is subordinate in right of payment to the Notes, such refinancing Indebtedness is subordinate in right of payment to the Notes on terms no less favorable to the Holders than those contained in the Indebtedness being refinanced, (2) in either case, the refinancing Indebtedness by its terms, or by the terms of any agreement or instrument pursuant to which such Indebtedness is issued, does not have an Average Life that is less than the remaining Average Life of the Series C Senior Notes up Indebtedness being refinanced and (3) any Indebtedness incurred to $5,000,000 in aggregate principal amount refinance any Indebtedness is incurred by the obligor on the Indebtedness being refinanced or by the Company;
(Bvii) their properties, assets and rights acquired after the date of original issuance Capital Lease Obligations of the Series C Senior NotesCompany or any Restricted Subsidiary with respect to the leasing by the Company or any Restricted Subsidiary of tower sites and equipment that is a fixture thereto; provided, provided that the aggregate principal amount of such Indebtedness under this Section 4.07(b)(iii)(B) does Capital Lease Obligations at any time outstanding shall not exceed 100% the sum of (x) the cost aggregate principal amount of such properties, assets Capital Lease Obligations then outstanding under the Permitted Sale-Leaseback and rights; (ivy) additional $25 million;
(viii) Indebtedness of the Company and its or any Restricted Subsidiaries Subsidiary consisting of a guarantee of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Section 4.02;
(ix) FCC Debt in an aggregate principal amount up not to exceed $25,000,000 40 million at any time outstanding plus the FCC Debt incurred in connection with the Mercury Acquisition and the Wireless 2000 Acquisition;
(all x) Indebtedness of the Company or any portion Restricted Subsidiary in respect of which may statutory obligations, performance, surety or appeal bonds or other obligations of a like nature incurred in the ordinary course of business; and
(xi) Indebtedness of the Company not otherwise permitted to be issued as additional incurred pursuant to clauses (i) through (x) above which, together with any other outstanding Indebtedness under the New Credit Agreementincurred pursuant to this clause (xi); provided that the , has an aggregate principal amount not in excess of $75 million at any time outstanding. Indebtedness of a person existing at the time such person becomes a Restricted Subsidiary or which is secured by a Lien on an asset acquired by the Company or a Restricted Subsidiary (whether or not such Indebtedness is assumed by the acquiring person) shall be deemed incurred at the time the person becomes a Restricted Subsidiary or at the time of the asset acquisition, as the case may be. For purposes of determining compliance with this Section 4.02, in the event that an item of Indebtedness outstanding under this clause (iv) together with meets the aggregate principal amount criteria of more than one of the categories of Indebtedness outstanding under clause permitted pursuant to clauses (i) above shall through (x) above, the Company shall, in its sole discretion, be permitted to classify such item of Indebtedness in any manner that complies with this Section 4.04 and may from time to time reclassify such item of Indebtedness in any manner that would comply with this Section 4.04 at the time of such reclassification. Accrual of interest and the accretion of accreted value will not exceed $120.0 million in aggregate principal amount at any one time outstanding; and (v)be deemed to be an incurrence of Indebtedness for purposes of this Section 4.04.
Appears in 1 contract
Limitation on Incurrence of Indebtedness. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, issue Issue any Indebtedness (other than the Indebtedness represented by the Senior Securities, the Old Notes and the Series C New Senior Notes in an amount not to exceed $270 million in the aggregateNotes) unless unless: the Company's Cash Flow Coverage Ratio for its four full fiscal quarters next preceding the date such additional Indebtedness is issued Issued would have been at least 2.00 least:
(i) 1.7 to 1, if such date is on or prior between the date of original Issuance of the Securities under this Indenture and June 30, 1999,
(ii) 1.85 to November 151, 1998from July 1, 1999 through June 30, 2001, or
(iii) 2.0 to 1, from July 1, 2001 and 2.25 to 1 thereafter, in each case determined on a Pro Forma basis (including, for this purpose, any other Indebtedness incurred since the end of the applicable four quarter period) Basis as if such additional Indebtedness and any other Indebtedness issued since the end of such four- the applicable four quarter period had been issued Issued at the beginning of such four-quarter period.
(b) Section 4.07(a) shall will not apply to the issuance of Issuance of:
(i) Indebtedness of the Company and/or its Restricted Subsidiaries as measured on such date of issuance in an aggregate principal amount outstanding on any such date of issuance not exceeding up to the greater of (A) $115,000,000 75.0 million in aggregate principal amount pursuant to the Credit Agreement or the New Credit Agreement Agreement, and (B) an aggregate principal amount up to the sum of of: (1x) 85% of the book value of the Receivables of the Company and its Restricted Subsidiaries Subsidiaries' Receivables on a consolidated basis basis, and (2y) 65% of the book value of the inventories of the Company and its Restricted Subsidiaries Subsidiaries' inventories on a consolidated basis; provided that the aggregate principal amount of Indebtedness outstanding under this clause (i) together with the aggregate principal amount of Indebtedness outstanding under clause (iv) below shall not exceed $120.0 million in aggregate principal amount at any one time outstanding; ;
(ii) Indebtedness of the Company and its Restricted Subsidiaries pursuant to any Receivables Financing; ;
(iii) Indebtedness of the Company and its Restricted Subsidiaries in connection with capital leases, sale and leaseback transactions, purchase money obligations, capital expenditures or similar financing transactions relating to to:
(A) their properties, assets and rights as of the date of original issuance of the Series C Senior Notes First Supplemental Indenture up to $5,000,000 20,000,000 in aggregate principal amount or amount, or
(B) their properties, assets and rights acquired after the date of original issuance of the Series C Senior NotesFirst Supplemental Indenture, provided that the aggregate principal amount of such Indebtedness under this Section 4.07(b)(iii)(B) does not exceed 100% of the cost of such properties, assets and rights; :
(iv) additional Indebtedness of the Company and its Restricted Subsidiaries in an aggregate principal amount up to $25,000,000 (all or any portion of which may be issued Issued as additional Indebtedness under the Credit Agreement or the New Credit Agreement); provided that the aggregate principal amount of Indebtedness outstanding under this clause (iv) together with the aggregate principal amount of Indebtedness outstanding under clause (i) above shall not exceed $120.0 million in aggregate principal amount at any one time outstanding; and and
(v)) Other Permitted Indebtedness.
Appears in 1 contract
Limitation on Incurrence of Indebtedness. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, issue Issue any Indebtedness (other than the Indebtedness represented by the Senior Notes and the Series C Senior Notes in an amount not to exceed $270 million in the aggregate) Securities), unless the Company's Cash Flow Coverage Ratio for its the four full fiscal quarters next preceding the date such additional Indebtedness is issued Issued would have been at least 2.00 (i) 1.7 to 1, if such date is on between the date of original Issuance of the Securities and June 30, 1999, (ii) 1.85 to 1, from July 1, 1999, through June 30, 2001, or prior (iii) 2.0 to November 151, 1998from July 1, 2001, and 2.25 to 1 thereafter, in each case determined on a Pro Forma basis (including, for this purpose, any other Indebtedness incurred since the end of the applicable four quarter period) Basis as if such additional Indebtedness and any other Indebtedness issued Issued since the end of such four- the applicable four-quarter period had been issued Issued at the beginning of such four-quarter period.
(b) Section 4.07(a4.7(a) shall will not apply to the issuance of Issuance of:
(i) Indebtedness of the Company and/or its Restricted Subsidiaries as measured on such date of issuance in an aggregate principal amount outstanding on any such date of issuance not exceeding up to the greater of (A) $115,000,000 75.0 million in aggregate principal amount pursuant to the New Credit Agreement and (B) an aggregate principal amount up to the sum of (1x) 85% of the book value of the Receivables of the Company and its Restricted Subsidiaries Subsidiaries' Receivables on a consolidated basis and (2y) 65% of the book value of the inventories of the Company and its Restricted Subsidiaries Subsidiaries' inventories on a consolidated basis; provided that the aggregate principal amount of Indebtedness outstanding under this clause (i) together with the aggregate principal amount of Indebtedness outstanding under clause (iv) below shall not exceed $120.0 million in aggregate principal amount at any one time outstanding; ;
(ii) Indebtedness of the Company and its Restricted Subsidiaries pursuant to any Receivables Financing; ;
(iii) Indebtedness of the Company and its Restricted Subsidiaries in connection with capital leases, sale and leaseback transactions, purchase money obligations, capital expenditures or similar financing transactions relating to (A) their properties, assets and rights as of the date of original issuance Issuance of the Series C Senior Notes Securities up to $5,000,000 20,000,000 in aggregate principal amount amount, or (B) their properties, assets and rights acquired after the date of original issuance Issuance of the Series C Senior NotesSecurities, provided that the aggregate principal amount of such Indebtedness under this Section 4.07(b)(iii)(B4.7(b)(iii)(B) does not exceed 100% of the cost of such properties, assets and rights; ;
(iv) additional Indebtedness of the Company and its Restricted Subsidiaries in an aggregate principal amount up to $25,000,000 (all or any portion of which may be issued Issued as additional Indebtedness under the New Credit Agreement); provided that the aggregate principal amount of Indebtedness outstanding under this clause (iv) together with the aggregate principal amount of Indebtedness outstanding under clause (i) above shall not exceed $120.0 million in aggregate principal amount at any one time outstanding; and and
(v)) Other Permitted Indebtedness.
Appears in 1 contract
Sources: Indenture (Jordan Industries Inc)
Limitation on Incurrence of Indebtedness. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, issue create, incur, issue, assume or directly or indirectly guarantee or in any other manner become directly or indirectly liable for ("incur") any Indebtedness (other than including Acquired Debt), except that the Company may incur Indebtedness represented by (including Acquired Debt) if, at the Senior Notes time of, and immediately after giving pro forma effect to, such incurrence of Indebtedness, the Series C Senior Notes in an amount not to exceed $270 million in the aggregate) unless the Company's Consolidated Cash Flow Coverage Ratio of the Company for its the most recently ended four full fiscal quarters next preceding the date such additional Indebtedness is issued would have been be at least 2.00 to 1, if such date is on or prior to November 15, 1998, and 2.25 to 1 thereafter, in each case determined on a Pro Forma basis (including, for this purpose, any other Indebtedness incurred since the end of the applicable four quarter period) as if such additional Indebtedness and any other Indebtedness issued since the end of such four- quarter period had been issued at the beginning of such four-quarter period1.0.
(b) Section 4.07(a) shall The foregoing limitations will not apply to the issuance incurrence of any of the following (collectively, "Permitted Indebtedness"), each of which shall be given independent effect:
(i) Indebtedness of the Company and/or its and any Restricted Subsidiaries as measured on such date of issuance Subsidiary arising under any New Credit Facility in an aggregate principal amount not to exceed at any time outstanding on any the sum, at such date time, of issuance not exceeding (A) the greater of (Ax) $115,000,000 aggregate principal amount pursuant to [55.0] million, less any permanent reduction in commitments thereunder that result from the New Credit Agreement and application of Excess Proceeds from an Asset Sale as provided in Section 4.16(b) or (By) an aggregate principal amount up to the sum sum, at such time of (1I) 85% of the consolidated book value of the Receivables net accounts receivable of the Company and its the Restricted Subsidiaries on a consolidated basis and Subsidiaries, plus (2II) 6560% of the consolidated book value of the inventories inventory of the Company and its the Restricted Subsidiaries on a consolidated basis; provided that Subsidiaries, plus (III) $13.0 million, less any scheduled permanent reductions in commitments under the aggregate principal amount of Indebtedness outstanding under this clause (i) together with the aggregate principal amount of Indebtedness outstanding under clause (iv) below shall not exceed $120.0 million in aggregate principal amount at any one time outstanding; New Credit Facility;
(ii) Indebtedness of the Company represented by the Initial Notes and its Restricted Subsidiaries pursuant to any Receivables Financing; Indebtedness of the Guarantors represented by the Note Guarantees;
(iii) other Indebtedness of the Company or any Restricted Subsidiary that is outstanding on the Issue Date ("Existing Indebtedness");
(iv) Indebtedness owed by any Restricted Subsidiary to the Company or to another Restricted Subsidiary, or owed by the Company to any Restricted Subsidiary that, if owed to a Restricted Subsidiary that is not a Guarantor, is unsecured and subordinated in right of payment to the payment and performance of the Company's obligations under the Indenture and the Notes; provided, however, that any such Indebtedness shall at all times be held by a Person which is either the Company or a Restricted Subsidiary; provided, further, however, that upon either (A) the transfer or other disposition of any such Indebtedness to a Person other than the Company or another Restricted Subsidiary or (B) the sale, lease, transfer or other disposition of shares of Capital Stock (including by consolidation or merger) of any such Restricted Subsidiary to a Person other than the Company or another Restricted Subsidiary, the incurrence of such Indebtedness shall be deemed to be an incurrence that is not permitted by this clause (iv);
(v) Indebtedness of the Company or any Restricted Subsidiary arising with respect to Interest Rate Agreement Obligations and Currency Agreement Obligations incurred for the purpose of fixing or hedging interest rate risk or currency risk with respect to any fixed or floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding or with respect to any receivable or liability the payment of which is determined by reference to a foreign currency;
(vi) Indebtedness represented by performance, completion, guarantee, surety and similar bonds provided by the Company or any Restricted Subsidiary in the ordinary course of business consistent with past practice;
(vii) any Indebtedness incurred in connection with or given in exchange for the renewal, extension, substitution, refunding, defeasance, refinancing or replacement, in whole or in part, (a "Refinancing") of any Indebtedness of the Company or a Restricted Subsidiary incurred as permitted under Section 4.10(a) or any Indebtedness described in clauses (i), (ii) or (iii) above and this clause (vii) ("Refinancing Indebtedness"); provided, however, that (A) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount (or accreted amount, if less) of the Indebtedness so refinanced (plus the premiums and reasonable expenses to be paid in connection therewith, which, with respect to such premiums, shall not exceed the stated amount of any premium or other payment required to be paid in connection with such a refinancing pursuant to the terms of the Indebtedness being refinanced); (B) the maturity of the Refinancing Indebtedness shall not be shorter than the maturity of the Indebtedness being refinanced; (C) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being refinanced; and (D) the Refinancing Indebtedness shall be at least as subordinated in right of payment to the Notes as the Indebtedness being refinanced;
(viii) Indebtedness of the Company or any Restricted Subsidiary (A) representing Capitalized Lease Obligations and any refinancings thereof and/or (B) in respect of Purchase Money Obligations for property acquired, constructed or improved in the ordinary course of business and any refinancings thereof, which taken together in the aggregate do not exceed $5.0 million at any time outstanding;
(ix) commodity agreements entered into in the ordinary course of business to protect against fluctuations in the prices of raw materials and not for speculative purposes;
(x) Indebtedness incurred by the Company or any Restricted Subsidiary constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including, without limitation, letters of credit in respect of workers' compensation claims or self-insurance, or other Indebtedness with respect to reimbursement type obligations regarding workers' compensation claims or self-insurance;
(xi) (A) Guarantees by the Company of Indebtedness of a Restricted Subsidiary permitted to be incurred under this Indenture and (B) Guarantees by the Guarantors of Indebtedness of the Company or a Restricted Subsidiary that is otherwise permitted to be incurred under this Section 4.10(b);
(xii) Indebtedness of the Company or any Restricted Subsidiary arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, in each case incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; provided that the maximum liability in respect of such Indebtedness shall not exceed the gross proceeds actually received by the Company and its Restricted Subsidiaries in connection with capital leases, sale and leaseback transactions, purchase money obligations, capital expenditures or similar financing transactions relating to such disposition;
(Axiii) their properties, assets and rights as Indebtedness of the date Company or any Restricted Subsidiary in addition to that described in clauses (i) through (xiii) above, and any renewals, extensions, substitutions, refinancings or replacements of original issuance of the Series C Senior Notes up to $5,000,000 in aggregate principal amount or (B) their propertiessuch Indebtedness, assets and rights acquired after the date of original issuance of the Series C Senior Notes, provided that so long as the aggregate principal amount of all such Indebtedness under incurred pursuant to this Section 4.07(b)(iii)(Bclause (xiii) does not exceed 100% of the cost of such properties, assets and rights; (iv) additional Indebtedness of the Company and its Restricted Subsidiaries in an aggregate principal amount up to $25,000,000 (all or any portion of which may be issued as additional Indebtedness under the New Credit Agreement); provided that the aggregate principal amount of Indebtedness outstanding under this clause (iv) together with the aggregate principal amount of Indebtedness outstanding under clause (i) above shall not exceed $120.0 5.0 million in aggregate principal amount at any one time outstanding; .
(c) For purposes of determining any particular amount of Indebtedness under this Section 4.10:
(i) in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (i) through (xiii) of Section 4.10(b) or is entitled to be incurred pursuant to Section 4.10(a), the Company will, in its sole discretion, classify or later reclassify that item of Indebtedness in any manner that complies with this Section 4.10, and
(ii) guarantees, Liens or obligations with respect to letters of credit supporting Indebtedness otherwise included in the determination of such particular amount shall not be included.
(d) Accrual of interest, accretion or amortization of original issue discount, the payment of interest on Indebtedness in the term of additional indebtedness with the same terms and the payment of dividends in Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of additional Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.10.
(v)e) Indebtedness of any Person which is outstanding at the time such Person becomes a Restricted Subsidiary or is merged with or into or consolidated with the Company or a Restricted Subsidiary shall be deemed to have been incurred at the time such Person becomes a Restricted Subsidiary or is merged with or into or consolidated with the Company or a Restricted Subsidiary, and Indebtedness which is assumed at the time of the acquisition of any asset shall be deemed to have been incurred at the time of such acquisition.
Appears in 1 contract
Sources: Indenture (Hawk Brake Inc)
Limitation on Incurrence of Indebtedness. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, issue to Issue any Indebtedness (other than the Indebtedness represented by the Senior Discount Debentures, the Old Notes and the Series C Senior Notes in an amount not to exceed $270 million in the aggregateSecurities) unless unless: the Company's Cash Flow Coverage Ratio for its four full fiscal quarters next preceding the date such additional Indebtedness is issued Issued would have been at least 2.00 least:
(i) 1.7 to 1, if such date is on or prior between the date of original Issuance of the Securities and June 30, 1995,
(ii) 1.85 to November 151, 1998from July 1, 1995 through June 30, 1997, or
(iii) 2.0 to 1, from July 1, 1997 and 2.25 to 1 thereafter, in each case determined on a Pro Forma pro forma basis (including, for this purpose, including a pro forma application of proceeds of such Indebtedness and any other Indebtedness incurred since the end of the applicable four quarter periodperiod including, without limitation, the earnings of any business acquired by the Company with the proceeds of such Indebtedness) as if such additional Indebtedness and any other Indebtedness issued since the end of such four- the applicable four quarter period had been issued Issued at the beginning of such four-quarter period.
(b) Section 4.07(a) shall will not apply to the issuance of Issuance of:
(i) Indebtedness of the Company and/or its Restricted Subsidiaries as measured on such date of issuance in an aggregate principal amount outstanding on any such date of issuance not exceeding up to the greater of (A) $115,000,000 75.0 million in aggregate principal amount pursuant to the Credit Agreement or the New Credit Agreement Agreement, and (B) an aggregate principal amount up to the sum of of: (1x) 85% of the book value of the Receivables of the Company and its Restricted Subsidiaries Subsidiaries' Receivables on a consolidated basis basis, and (2y) 65% of the book value of the inventories of the Company and its Restricted Subsidiaries Subsidiaries' inventories on a consolidated basis; provided that the aggregate principal amount of Indebtedness outstanding under this clause (i) together with the aggregate principal amount of Indebtedness outstanding under clause (iv) below shall not exceed $120.0 million in aggregate principal amount at any one time outstanding; ;
(ii) Indebtedness of the Company and its Restricted Subsidiaries pursuant to any Receivables Financing; ;
(iii) Indebtedness of the Company and its Restricted Subsidiaries in connection with capital leases, sale and leaseback transactions, purchase money obligations, capital expenditures or similar financing transactions relating to to:
(A) their properties, assets and rights as of the date of original issuance Issuance of the Series C Senior Notes Securities up to $5,000,000 20,000,000 in aggregate principal amount or amount, or
(B) their properties, assets and rights acquired after the date of original issuance Issuance of the Series C Senior NotesSecurities, provided that the aggregate principal amount of such Indebtedness under this Section 4.07(b)(iii)(B) does not exceed 100% of the cost of such properties, assets and rights; ;
(iv) additional Indebtedness of the Company and its Restricted Subsidiaries in an aggregate principal amount up to $25,000,000 (all or any portion of which may be issued Issued as additional Indebtedness under the Credit Agreement or the New Credit Agreement); provided that the aggregate principal amount of Indebtedness outstanding under this clause (iv) together with the aggregate principal amount of Indebtedness outstanding under clause (i) above shall not exceed $120.0 million in aggregate principal amount at any one time outstanding; and (v)and
Appears in 1 contract
Sources: Indenture (Jordan Industries Inc)
Limitation on Incurrence of Indebtedness. (a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, issue Issue any Indebtedness (other than the Indebtedness represented by the Securities, the Old Senior Notes and the Series C Senior Notes in an amount not to exceed $270 million in the aggregateDiscount Debentures) unless the Company's Cash Flow Coverage Ratio for its four full fiscal quarters next preceding the date such additional Indebtedness is issued Issued would have been at least 2.00 (i) 1.7 to 1, if such date is on between the date of original Issuance of the Securities and June 30, 1999, (ii) 1.85 to 1, from July 1, 1999, through June 30, 2001, or prior (iii) 2.0 to November 151, 1998from July 1, 2001, and 2.25 to 1 thereafter, in each case determined on a Pro Forma basis (including, for this purpose, any other Indebtedness incurred since the end of the applicable four quarter period) Basis as if such additional Indebtedness and any other Indebtedness issued since the end of such four- the applicable four-quarter period had been issued at the beginning of such four-quarter period.
(b) Section 4.07(a) shall will not apply to the issuance of Issuance of:
(i) Indebtedness of the Company and/or its Restricted Subsidiaries as measured on such date of issuance in an aggregate principal amount outstanding on any such date of issuance not exceeding up to the greater of (A) $115,000,000 75.0 million in aggregate principal amount pursuant to the New Credit Agreement and (B) an aggregate principal amount up to the sum of (1x) 85% of the book value of the Receivables of the Company and its Restricted Subsidiaries Subsidiaries' Receivables on a consolidated basis and (2y) 65% of the book value of the inventories of the Company and its Restricted Subsidiaries Subsidiaries' inventories on a consolidated basis; provided that the aggregate principal amount of Indebtedness outstanding under this clause (i) together with the aggregate principal amount of Indebtedness outstanding under clause (iv) below shall not exceed $120.0 million in aggregate principal amount at any one time outstanding; ;
(ii) Indebtedness of the Company and its Restricted Subsidiaries pursuant to any Receivables Financing; ;
(iii) Indebtedness of the Company and its Restricted Subsidiaries in connection with capital leases, sale and leaseback transactions, purchase money obligations, capital expenditures or similar financing transactions relating to (A) their properties, assets and rights as of the date of original issuance Issuance of the Series C Senior Notes Securities up to $5,000,000 20,000,000 in aggregate principal amount amount, or (B) their properties, assets and rights acquired after the date of original issuance Issuance of the Series C Senior NotesSecurities, provided that the aggregate principal amount of such Indebtedness under this Section 4.07(b)(iii)(B) does not exceed 100% of the cost of such properties, assets and rights; ;
(iv) additional Indebtedness of the Company and its Restricted Subsidiaries in an aggregate principal amount up to $25,000,000 (all or any portion of which may be issued Issued as additional Indebtedness under the New Credit Agreement); provided that the aggregate principal amount of Indebtedness outstanding under this clause (iv) together with the aggregate principal amount of Indebtedness outstanding under clause (i) above shall not exceed $120.0 million in aggregate principal amount at any one time outstanding; and and
(v)) Other Permitted Indebtedness.
Appears in 1 contract
Sources: Indenture (Jordan Industries Inc)
Limitation on Incurrence of Indebtedness. Neither Parent nor any of its Restricted Subsidiaries will incur, directly or indirectly, any Indebtedness, except:
(a) The Company shall notIndebtedness of Parent or the Borrower, if immediately after giving effect to the incurrence of such Indebtedness and shall not permit any Restricted Subsidiary tothe receipt and application of the net proceeds thereof, issue any the Consolidated Cash Flow Ratio of Parent for the most recent period of four full Fiscal Quarters for which quarterly or annual financial statements have been delivered pursuant to Section 5.1(a) or 5.1(b) next preceding the incurrence of such Indebtedness would be greater than 2.0 to 1.0;
(other than the b) Indebtedness represented by outstanding on the Senior Notes and Issue Date or incurred pursuant to Section 3.10(a) of the Series C Senior Notes in an amount not to exceed $270 million in the aggregate) unless the Company's Cash Flow Coverage Ratio for its four full fiscal quarters next preceding the date such additional Indebtedness is issued would have been at least 2.00 to 1, if such date is on or Indenture prior to November 15the Closing Date (or that is Indebtedness incurred to renew, 1998extend, refinance or refund Indebtedness outstanding on the Senior Notes Issue Date (or Indebtedness incurred pursuant to Section 3.10(a) of the Senior Notes Indenture prior to the Closing Date) and 2.25 to 1 thereafterthat satisfies the requirements of clause (m) of this Section with respect thereto), in each case determined that is outstanding on a Pro Forma basis (including, for this purpose, any other Indebtedness incurred since the end of the applicable four quarter period) as if such additional Indebtedness and any other Indebtedness issued since the end of such four- quarter period had been issued at the beginning of such four-quarter period.Closing Date;
(b) Section 4.07(a) shall not apply to the issuance of (ic) Indebtedness of Parent or any Restricted Subsidiary of Parent under Credit Facilities (which, for the Company and/or its Restricted Subsidiaries as measured on such date avoidance of issuance doubt, shall include Indebtedness incurred pursuant to this Agreement) in an aggregate principal amount outstanding on any such date of issuance not exceeding the greater of (A) $115,000,000 aggregate principal amount pursuant to the New Credit Agreement and (B) an aggregate principal amount up to the sum of (1) 85% of the book value of the Receivables of the Company and its Restricted Subsidiaries on a consolidated basis and (2) 65% of the book value of the inventories of the Company and its Restricted Subsidiaries on a consolidated basis; provided that the aggregate principal amount of Indebtedness outstanding under this clause (i) together with the aggregate principal amount of Indebtedness outstanding under clause (iv) below shall not exceed $120.0 million in aggregate principal amount at any one time outstanding; outstanding pursuant to this clause (c) not to exceed the greater of (i) $200,000,000 or (ii) Indebtedness the sum of (A) 85.0% of the Company total book value of accounts receivable and (B) 60% of the total book value of inventory of Parent and its Restricted Subsidiaries pursuant to any Receivables Financing; (iii) Indebtedness of the Company Subsidiaries, in each case as reflected on Parent’s and its Restricted Subsidiaries Subsidiaries’ most recent consolidated financial statements prepared in connection accordance with capital leases, sale GAAP and leaseback transactions, purchase money obligations, capital expenditures delivered pursuant to Section 5.1(a) or similar financing transactions relating to (A) their properties, assets and rights as of the date of original issuance of the Series C Senior Notes up to $5,000,000 in aggregate principal amount or (B) their properties, assets and rights acquired after the date of original issuance of the Series C Senior Notes, provided that the aggregate principal amount of such Indebtedness under this Section 4.07(b)(iii)(B) does not exceed 100% of the cost of such properties, assets and rights; (iv) additional Indebtedness of the Company and its Restricted Subsidiaries in an aggregate principal amount up to $25,000,000 (all or any portion of which may be issued as additional Indebtedness under the New Credit Agreement5.1(b); provided that the aggregate principal amount in clause (ii) of this clause (c) shall not exceed $1,000,000,000;
(d) Indebtedness outstanding owed by Parent to any Restricted Subsidiary of Parent or Indebtedness owed by a Restricted Subsidiary of Parent to Parent or a Restricted Subsidiary of Parent; provided that upon either (i) the transfer or other disposition by such Restricted Subsidiary or Parent of any Indebtedness so permitted under this clause (ivd) together with to a Person other than Parent or another Restricted Subsidiary of Parent or (ii) the aggregate principal amount issuance, sale, transfer or other disposition of shares of Capital Stock (other than directors’ qualifying shares) or other ownership interests (including by consolidation or merger) of such Restricted Subsidiary to a Person other than Parent or another such Restricted Subsidiary of Parent, the provisions of this clause (d) shall no longer be applicable to such Indebtedness outstanding and such Indebtedness shall be deemed to have been incurred at the time of any such issuance, sale, transfer or other disposition, as the case may be;
(e) Indebtedness of Parent or any of its Restricted Subsidiaries under clause any Hedge Agreement in each case incurred in the ordinary course of business to (i) hedge or mitigate risks to which Parent or any Restricted Subsidiary has actual exposure or (ii) effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of Parent or any Restricted Subsidiary;
(f) Acquired Indebtedness, if either (i) Parent would be permitted to incur at least $1.00 of additional Indebtedness pursuant to clause (a) above shall after giving pro forma effect to the relevant transaction described in the definition of the term “Acquired Indebtedness” and incurrence of such Acquired Indebtedness or (ii) (A) Parent’s Consolidated Cash Flow Ratio for the most recent period of four full Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.1(a) or 5.1(b) after giving pro forma effect to such relevant transaction and incurrence of such Acquired Indebtedness as of the beginning of such period would be greater than (B) Parent’s Consolidated Cash Flow Ratio for such period immediately prior to, and without giving pro forma effect to, such transaction and incurrence of such Acquired Indebtedness;
(g) Indebtedness incurred by Parent or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including, without limitation, letters of credit in response to worker’s compensation claims or self-insurance;
(h) Indebtedness arising from agreements of Parent or any of its Restricted Subsidiaries providing for adjustment of purchase price, earn-out or other similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or a Subsidiary of Parent;
(i) obligations in respect of performance and surety bonds and completion guarantees provided by Parent or any of its Restricted Subsidiaries in the ordinary course of business;
(j) Indebtedness consisting of notes issued to employees, officers or directors in connection with the redemption or repurchase of Capital Stock held by such Persons in an aggregate amount not in excess of $2,500,000 at any time outstanding;
(k) Indebtedness consisting of take-or-pay obligations contained in supply agreements entered into by Parent or its Restricted Subsidiaries in the ordinary course of business;
(l) the guarantee by Parent or any of its Restricted Subsidiaries of Indebtedness of Parent or any Restricted Subsidiary permitted to be incurred under another provision of this Section;
(m) Indebtedness incurred to renew, extend, refinance or refund (collectively for purposes of this clause (m) to “refund”) any Indebtedness incurred pursuant to clause (a), (b) or (f) above, this clause (m) or clause (o) below (including any successive refundings); provided that:
(i) such Indebtedness does not exceed $120.0 million in aggregate the principal amount at (or accreted amount, if less) of the Indebtedness so refunded plus the amount of any one time outstanding; and premium required to be paid in connection with such refunding pursuant to the terms of the Indebtedness refunded or the amount of any premium reasonably determined by Parent as necessary to accomplish such refunding by means of a tender offer, exchange offer or privately negotiated repurchase, plus the expenses of Parent or such Restricted Subsidiary incurred in connection therewith, and
(v)ii) (A) in the case of any refunding of Indebtedness that is pari passu with the Obligations or any Obligations Guarantee, such refunding Indebtedness is made pari passu with or subordinate in right of payment to the Obligations or such Obligations Guarantee, as the case may be, and, in the case of any refunding of Indebtedness that is subordinate in right of payment to the Obligations or any Obligations Guarantee, such refunding Indebtedness is subordinate in right of payment to the Obligations or such Obligations Guarantee, as the case may be, on terms no less favorable to the Lenders than those contained in the Indebtedness being refunded,
Appears in 1 contract
Limitation on Incurrence of Indebtedness. (a) The Fedders Corporation and the Company shall not, and shall not cause or permit any Restricted Subsidiary to, directly or indirectly, issue any Indebtedness (other than the Indebtedness represented by the Senior Notes and Securities issued on the Series C Senior Notes Issue Date in an aggregate principal amount not to exceed $270 million in 155,000,000); provided, however, that Fedders Corporation, the aggregate) unless Company and the CompanySubsidiary Guarantors will be entitled to issue Indebtedness if Fedders Corporation's Cash Flow Coverage Ratio for its four full fiscal quarters next preceding the date such additional Indebtedness is issued would have been at least 2.00 to 1, if such date is on or prior to November 15, 1998, and 2.25 2.5 to 1 thereafter, in each case determined on a Pro Forma basis Basis (including, for this purpose, any other Indebtedness incurred since the end of the applicable four four-quarter period) as if such additional Indebtedness and any other Indebtedness issued since the end of such four- four-quarter period had been issued at the beginning of such four-quarter period.
(b) Section 4.07(a) shall The foregoing limitations will not apply to the issuance of of:
(i) Indebtedness of Fedders Corporation, the Company and/or its Restricted Subsidiaries the Subsidiary Guarantors under one or more Credit Facilities as measured on such date of issuance in an aggregate principal amount outstanding on any such date of issuance not exceeding the greater of (Ax) $115,000,000 aggregate principal amount pursuant to the New Credit Agreement and (B) an aggregate principal amount up to the sum of (1A) 85% of the book value of the Receivables accounts receivable of Fedders Corporation, the Company and its Restricted Subsidiaries the Subsidiary Guarantors on a consolidated basis and (2B) 6570% of the book value of the inventories inventory of Fedders Corporation, the Company and its Restricted Subsidiaries the Subsidiary Guarantors on a consolidated basis; provided that the aggregate principal amount of Indebtedness outstanding under this clause basis or (iy) together with the aggregate principal amount of Indebtedness outstanding under clause (iv) below shall not exceed $120.0 million in aggregate principal amount at any one time outstanding; 100,000,000;
(ii) Indebtedness of Fedders Corporation, the Company and its Restricted Subsidiaries pursuant to any Receivables Financing; (iii) Indebtedness of the Company and its Restricted Subsidiaries in connection with capital leases, sale and leaseback transactions, purchase money obligations, capital expenditures or similar financing transactions relating to (A) their properties, assets and rights as of the date of original issuance of the Series C Senior Notes up to $5,000,000 15,000,000 in aggregate principal amount or amount;
(B) their properties, assets and rights acquired after the date of original issuance of the Series C Senior Notes, provided that the aggregate principal amount of such Indebtedness under this Section 4.07(b)(iii)(B) does not exceed 100% of the cost of such properties, assets and rights; (iviii) additional Indebtedness of Fedders Corporation, the Company and its Restricted Subsidiaries the Subsidiary Guarantors in an aggregate principal amount of up to $25,000,000 (all or any portion of which may be issued as additional Indebtedness under the New Credit Agreement)15,000,000; provided that the aggregate principal amount of Indebtedness outstanding under this clause (iv) together with the aggregate principal amount of Indebtedness outstanding under clause (i) above shall not exceed $120.0 million in aggregate principal amount at any one time outstanding; and (v)and
Appears in 1 contract
Sources: First Supplemental Indenture and Waiver (Fedders Corp /De)