Limitation on Indebtedness. (1) The Company shall not, and shall not permit any Restricted Subsidiary to, incur, directly or indirectly, any Indebtedness unless, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1. (2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur any or all of the following Indebtedness: (a) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP; (b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence of such Indebtedness by the issuer thereof; (c) the Securities; (d) Indebtedness outstanding as of the date of this Note (other than Indebtedness described in clause (A), (B) or (C) of this Section 3(d)(2)); (e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E); (f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder; (g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program; (h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein; (i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture; (j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.
Appears in 5 contracts
Sources: Exchange Agreement (Avondale Inc), Exchange Agreement (Avondale Inc), Exchange Agreement (Avondale Inc)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company and the Subsidiary Guarantors will be entitled to Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto on a pro forma basis, no Default has occurred and is continuing and the Consolidated Coverage Ratio exceeds 2.0 2.5 to 1.
(2b) Notwithstanding the foregoing paragraph (1Section 4.08(a), the Company and its the Restricted Subsidiaries may incur shall be entitled to Incur any or all of the following Indebtedness:
(a1) Indebtedness incurred Incurred by the Company and its Restricted Subsidiaries pursuant to the Credit Facility or any other revolving credit arrangementFacilities; provided, however, that, immediately after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such all Indebtedness Incurred under this clause (1) and then outstanding does not exceed the greater of (A) $175,000,000 (300 million less the then outstanding sum of all principal amount of payments since the Issue Date with respect to such Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause pursuant to Section 4.11(a)(3)(A) and (B) below) and the sum of (i) 50$150 million plus 20% of the book value ACNTA as of the inventory date of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPsuch Incurrence;
(b2) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that (A) any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereofobligor thereon and (B) if the Company or a Subsidiary Guarantor is the obligor on such Indebtedness, unless such Indebtedness is owing to the Company or a Subsidiary Guarantor, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes;
(c3) the SecuritiesNotes (but excluding any Additional Notes) and all Subsidiary Guaranties;
(d4) Indebtedness outstanding as of on the date of this Note Issue Date (other than Indebtedness described in clause (A1), (B2) or (C3) of this Section 3(d)(24.08(b));
(e5) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Subsidiary became a Restricted Subsidiary or was acquired by the Company (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Restricted Subsidiary or was acquired by the Company); provided, however, that on the date such Subsidiary became a Restricted Subsidiary or was acquired by the Company and after giving pro forma effect thereto, the Company would have been able to Incur at least $1.00 of additional Indebtedness pursuant to Section 4.08(a);
(6) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(14.08(a) or pursuant to clause (C) 3), (4), or (D5) of this Section 3(d)(24.08(b) or this clause (E6); provided, however, that to the extent such Refinancing Indebtedness directly or indirectly Refinances Indebtedness of a Restricted Subsidiary Incurred pursuant to clause (5) of this Section 4.08(b), such Refinancing Indebtedness shall be Incurred only by such Restricted Subsidiary;
(f7) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness outstanding on the Issue Date or permitted to be incurred hereunderIncurred by the Company and its Restricted Subsidiaries pursuant to this Indenture;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described 8) Hedging Obligations consisting of Oil and Natural Gas Hedging Contracts and Currency Agreements entered into in clause (B) above, the ordinary course of business for the purpose of limiting risks that arise in an amount not exceeding 95% the ordinary course of business of the aggregate unpaid balance of the Receivables Company and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Programits Subsidiaries;
(h9) Indebtedness in respect of performance, bid and surety bonds, including Guarantees and letters of credit functioning as or supporting such performance, bid and surety bonds, completion guarantees and other reimbursement obligations provided by the Company or any Restricted Subsidiary in the ordinary course of business (in each case other than for an obligation for money borrowed);
(10) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within two Business Days of its Incurrence;
(11) Indebtedness consisting of any Guarantee by the Company or a Subsidiary Guarantor of Indebtedness of the Company and or a Subsidiary Guarantor outstanding on the Company's Restricted Subsidiaries Issue Date or permitted by this Indenture to be Incurred by the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture Company or all New Notes pursuant to the terms hereina Subsidiary Guarantor;
(i12) Indebtedness represented by guarantees by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, Incurred for the purpose of financing all or any part of the purchase price, cost of construction or improvement or carrying cost of assets used in the business of the Company or the Company's and its Restricted Subsidiaries of and related financing costs, and Refinancing Indebtedness otherwise permitted Incurred to be incurred under the Indenture;
(j) Refinance any Indebtedness incurred by the Company Incurred pursuant to this clause, in an aggregate principal amount whichat any one time outstanding not to exceed $25.0 million;
(13) Indebtedness arising from any agreement providing for indemnities, together with all other Indebtedness Guarantees, purchase price adjustments, holdbacks, contingency payment obligations based on the performance of the Company outstanding on acquired or disposed assets or similar obligations (other than Guarantees of Indebtedness) Incurred by any Person in connection with the date acquisition or disposition of such incurrence which was incurred pursuant to this clause assets;
(J), does not exceed $55,000,000. With respect to 14) Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.in-kind obligations relating to net oil or natural gas balancing positions arising in the ordinary course of business;
Appears in 4 contracts
Sources: Third Supplemental Indenture (Denbury Resources Inc), First Supplemental Indenture (Denbury Resources Inc), Third Supplemental Indenture (Encore Acquisition Co)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, incur, directly or indirectly, Incur any Indebtedness unless(including Acquired Indebtedness); provided, however, that the Company or a Guarantor may Incur Indebtedness if on the date of such incurrenceIncurrence and after giving pro forma effect thereto (including pro forma application of the proceeds thereof), the Consolidated Fixed Charge Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), for the Company and its Restricted Subsidiaries may incur any or all is greater than 2.0 to 1.0.
(b) Section 4.09(a) shall not prohibit the Incurrence of the following Indebtedness:
(a1) Indebtedness incurred Incurred pursuant to any Credit Facility (including letters of credit or bankers’ acceptances issued or created under any Credit Facility), and any Refinancing Indebtedness in respect thereof and Guarantees in respect of such Indebtedness in a maximum aggregate principal amount at any time outstanding not exceeding (i) the greater of (x) $1,210.0 million and (y) 17.5% of ERC, plus (ii) in the case of any refinancing of any Indebtedness permitted under this Section 4.09(b)(1) or any portion thereof, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses Incurred in connection with such refinancing;
(2) (A) Guarantees by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount Restricted Subsidiary of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), Subsidiary in each case determined in accordance with GAAP;
(b) so long as the Incurrence of such Indebtedness being guaranteed is permitted under the terms of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiarythis Indenture; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such if the Indebtedness (other than being guaranteed is subordinated to the Company Notes or a Restricted Subsidiary) shall Note Guarantee, then the guarantee must be deemed, in each case, to constitute the incurrence of such Indebtedness by the issuer thereof;
(c) the Securities;
(d) Indebtedness outstanding as of the date of this Note (other than Indebtedness described in clause (A), (B) or (C) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries subordinated to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant Notes or Note Guarantee to the terms of same extent as the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.guaranteed; or
Appears in 4 contracts
Sources: Indenture (Encore Capital Group Inc), Indenture (Encore Capital Group Inc), Indenture (Encore Capital Group Inc)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company or a Restricted Subsidiary may Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto, the Consolidated Coverage Ratio equals or exceeds 2.0 2.25 to 11.0.
(2b) Notwithstanding the foregoing paragraph (1Section 4.03(a), the Company and its any Restricted Subsidiaries Subsidiary may incur any or all of Incur the following Indebtedness:
(a1) Indebtedness incurred by the Company Incurred pursuant to any Credit Facility, so long as the aggregate amount of all such Indebtedness outstanding under all Credit Facility or any other revolving credit arrangement; providedFacilities Incurred under this clause (1) does not, however, that, immediately after giving effect to any such incurrencethereto, exceed the greatest of (x) $1,050.0 million, less the aggregate principal amount of such Indebtedness then outstanding does not exceed all Permanent Principal Repayments of Priority Lien Debt since the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program Issue Date that are made in satisfaction of the Company or any Restricted Subsidiaryrequirements of Section 4.07, other than Indebtedness described in clause (By) below) and the sum of (i) 5035.0% of the book value Modified ACNTA as of the inventory date of such Incurrence and (z) the Borrowing Base as of the Company and its Restricted Subsidiaries and (ii) 85% date of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPsuch Incurrence;
(b2) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a any Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereof;
(cA) the Securities;
(d) any Second Lien Debt, any Junior Lien Debt and any unsecured Indebtedness in an aggregate principal amount outstanding, together with all other Indebtedness outstanding under this clause (b)(3)(A), not to exceed the greater of (x) $1,000.0 million and (y) (I) 65.0% of Modified ACNTA determined as of the date of such Incurrence minus (II) the aggregate amount of all Indebtedness outstanding under Credit Facilities Incurred under Section 4.03(b)(1) as of the date of such Incurrence (assuming for such purposes that all available amounts under Section 4.03(b)(1) are fully drawn); provided, however, that unsecured Indebtedness Incurred under this Note Section 4.03(b)(3)(A) after the Issue Date shall not have a Stated Maturity any earlier than the Stated Maturity of the Securities, and
(B) Indebtedness of the Company represented by the Securities (other than any Additional Securities);
(4) Indebtedness outstanding on the Issue Date (other than Indebtedness described in clause clauses (A1), (B2) or (C3) of this Section 3(d)(24.03(b));
(e5) Indebtedness of (A) a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company) and (B) the Company or a Restricted Subsidiary Incurred for the purpose of financing all or any part of the cost of acquiring Oil and Gas Properties or Carbon Dioxide Interests, another Person (other than a Person that was, immediately prior to such acquisition, a Subsidiary of the Company) engaged in the Oil and Gas Business or all or substantially all the assets of such a Person; provided, however, that in the case of each of clause (A) and clause (B) above, on the date of such Incurrence and after giving effect thereto, the Consolidated Coverage Ratio equals or exceeds 2.0 to 1.0;
(6) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(14.03(a) or pursuant to clause Section 4.03(b)(3)(B), (C4) or (D5), this clause (6) or clause (7) below; provided, however, that to the extent such Refinancing Indebtedness directly or indirectly Refinances Indebtedness or Preferred Stock of a Restricted Subsidiary described in Section 4.03(b)(5), such Refinancing Indebtedness shall be Incurred only by such Restricted Subsidiary or the Company;
(7) Non-recourse Purchase Money Indebtedness;
(8) Indebtedness consisting of the Subsidiary Guarantees and any Guarantee by a Subsidiary Guarantor of Indebtedness Incurred by the Company pursuant to clauses (1) and (3) of this Section 3(d)(2) or this clause (E4.03(b);
(f9) Hedging Obligations Indebtedness consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunderIncurred by the Company and its Restricted Subsidiaries pursuant to this Indenture;
(g10) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described under Oil and Gas Hedging Contracts and Currency Agreements entered into in clause (B) above, the ordinary course of business for the purpose of limiting risks that arise in an amount not exceeding 95% the ordinary course of business of the aggregate unpaid balance of the Receivables Company and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Programits Restricted Subsidiaries;
(h11) Indebtedness in respect of bid, performance or surety obligations issued by or for the account of the Company or any Restricted Subsidiary in the ordinary course of business, including Guarantees and letters of credit functioning as or supporting such bid, performance or surety obligations (in each case other than for an obligation for money borrowed);
(12) Indebtedness of the Company or a Restricted Subsidiary Incurred to finance capital expenditures and the Company's Restricted Subsidiaries to the extent the net proceeds Refinancing Indebtedness Incurred in respect thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, when taken together with the amount of all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred Incurred pursuant to this clause (J)12) since the Issue Date and then outstanding, does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.20.0 million;
Appears in 3 contracts
Sources: Indenture (Denbury Resources Inc), Indenture (Denbury Resources Inc), Indenture (Denbury Resources Inc)
Limitation on Indebtedness. (1A) The Company shall Issuer will not, and shall will not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Issuer and the Restricted Subsidiaries will be entitled to Incur Indebtedness unless(including revolving credit Indebtedness) if, on the date of such incurrenceIncurrence and after giving effect thereto (and the use of proceeds, if any, therefrom, in accordance with the Consolidated Coverage definition of Maximum Balance Sheet Leverage Ratio), no Default has occurred and is continuing and the Maximum Balance Sheet Leverage Ratio exceeds 2.0 is no greater than 1.5 to 11.0.
(2B) Notwithstanding the foregoing paragraph (1Section 4.02(A), the Company Issuer and its the Restricted Subsidiaries may incur will be entitled to Incur any or all of the following Indebtedness:
(ai) Indebtedness incurred Incurred by the Company Issuer pursuant to any Credit Facility (including the Credit Facility or any other revolving credit arrangementAgreement); provided, however, that, immediately after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such all Indebtedness Incurred under this Section 4.02(B)(i) and then outstanding does not exceed the greater of (x) seven hundred million dollars ($175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below700,000,000) and the sum (y) ten percent (10.0%) of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and Total Assets;
(ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
(b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company Issuer or a Restricted Subsidiary; provided, however, that (A) any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company Issuer or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereofobligor thereon and (B) if the Issuer is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes;
(ciii) the SecuritiesNotes (other than any Additional Notes);
(div) Indebtedness outstanding as of the date of this Note Issuer and its Subsidiaries outstanding on the Issue Date (other than Indebtedness described in clause (Ai), (Bii) or (Ciii) of this Section 3(d)(24.02(B));
(ev) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Subsidiary was acquired by the Issuer (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by the Issuer); provided, however, at the time of such acquisition and after giving effect thereto, the aggregate principal amount of all Indebtedness Incurred pursuant to this clause (v) and then outstanding does not exceed twenty five million dollars ($25,000,000);
(vi) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(14.02(A) or pursuant to clause (Ciii), (iv), (v) or (D) of this Section 3(d)(2xv) or this clause (Evi); provided, however, that to the extent such Refinancing Indebtedness directly or indirectly Refinances Indebtedness of a Subsidiary Incurred pursuant to clause (v), such Refinancing Indebtedness shall be Incurred only by such Subsidiary;
(fvii) Hedging Obligations consisting of Interest Rate the Issuer or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunderany Restricted Subsidiary entered into in the ordinary course of business and not for the purpose of speculation;
(gviii) Indebtedness incurred obligations in respect of letters of credit, performance, bid and surety bonds, completion guarantees, budget guarantees, payment obligations in connection with self-insurance or similar requirements provided by a Receivables Subsidiary, other than Indebtedness described the Issuer or any Restricted Subsidiary in clause (B) above, in an amount not exceeding 95% the ordinary course of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Programbusiness;
(hix) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five (5) Business Days of its Incurrence;
(x) Indebtedness with respect to workers’ compensation claims or representing deferred compensation to employees incurred in the ordinary course of business;
(xi) any Guarantee (including the Subsidiary Guaranties) by the Issuer or a Restricted Subsidiary of Indebtedness or other obligations of the Company and the Company's Issuer or any of its Restricted Subsidiaries to so long as the extent Incurrence of such Indebtedness by the net proceeds thereof are concurrently deposited to defease all Securities pursuant to Issuer or such Restricted Subsidiary is permitted under the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(jxii) Indebtedness incurred arising from agreements providing for indemnification, deposits, adjustment of purchase price or similar obligations, in each case, Incurred or assumed in connection with the acquisition or disposition of any business, assets or a Subsidiary; provided, however, that (A) such Indebtedness is not reflected on the balance sheet of the Issuer or any Restricted Subsidiary (contingent obligations referred to in a footnote or footnotes to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (A)) and (B) in the case of a disposition, the maximum liability in respect of such Indebtedness shall at no time exceed the gross proceeds including noncash proceeds (the fair market value of such noncash proceeds being determined at the time received and without giving effect to any subsequent changes in value) actually received by the Company Issuer or such Restricted Subsidiary in connection with such disposition;
(xiii) Non-Recourse Indebtedness, Permitted Non-Recourse Carve-Out Guarantees and Permitted Co-investments;
(xiv) Indebtedness of the Issuer or any Restricted Subsidiary (together with any refinancing thereof) in an aggregate principal amount which, when taken together with all other Indebtedness of the Company Issuer and the Restricted Subsidiaries outstanding on the date of such incurrence which was incurred pursuant to this clause Incurrence (Jother than Indebtedness permitted by clauses (i) through (xiii) above or Section 4.02(A)), does not exceed the greater of (x) three hundred and fifty million dollars ($55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J350,000,000) no more and (y) five percent (5.0%) of Total Assets; and
(xv) Indebtedness, other than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money borrowed money, incurred in the ordinary course of business consisting of (a) customer deposits and advance payments received; (b) take-or-pay obligations contained in supply arrangements; and (c) open accounts extended by suppliers on normal trade terms in connection with purchases of goods and services that are not overdue for a period of more than ninety (90) days or, if overdue for more than ninety (90) days, as to which a dispute exists and adequate reserves in conformity with GAAP have been established.
(C) Notwithstanding the foregoing, none of the Issuer or any Subsidiary Guarantor will Incur any Indebtedness pursuant to the foregoing Section 4.02(B) if the proceeds thereof are used, directly or indirectly, to Refinance any Subordinated Obligations of the Issuer or any Subsidiary Guarantor unless such Indebtedness shall be subordinated to the Notes or the applicable Subsidiary Guaranty to at least the same extent as such Subordinated Obligations.
(D) For purposes of determining compliance with this Section 4.02: (1) in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness set forth in Section 4.02(B), the Issuer, in its sole discretion, will be permitted to classify all or a portion of such item of Indebtedness at the time of Incurrence, or later reclassify all or a portion of such item of Indebtedness, in one of the clauses of Section 4.02(B) in any manner that complies with this Section 4.02; and (2) the Issuer will be entitled to divide and classify or reclassify an item of Indebtedness in more than one of the types of Indebtedness set forth in Section 4.02(B). Notwithstanding the foregoing, Indebtedness incurred under the Credit Agreement will be deemed to have been incurred under Section 4.02(B)(i) and the Issuer shall not be permitted to reclassify all or any portion of such Indebtedness. Indebtedness permitted by this Section 4.02 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 Section 4.02 permitting such Indebtedness. For the avoidance of doubt, the outstanding principal amount of any particular Indebtedness shall be counted only once and any obligations arising under any Guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness shall not be double counted.
(E) For purposes of determining compliance with any U.S. dollar restriction on the Incurrence of Indebtedness where the Indebtedness Incurred is denominated in a different currency, the amount of such Indebtedness will be the U.S. Dollar Equivalent determined on the date of the Incurrence of such Indebtedness, provided, however, that if any such Indebtedness denominated in a different currency is subject to a Currency Agreement with respect to U.S. dollars covering all principal, premium, if any, and interest payable on such Indebtedness, the amount of such Indebtedness expressed in U.S. dollars will be as provided in such Currency Agreement. The principal amount of any Refinancing Indebtedness Incurred in the same currency as the Indebtedness being Refinanced will be the U.S. Dollar Equivalent of the Indebtedness Refinanced, except to the extent that (1) such U.S. Dollar Equivalent was determined based on a Currency Agreement, in which case the Refinancing Indebtedness will be determined in accordance with the preceding sentence; and (2) the principal amount of the Refinancing Indebtedness exceeds the principal amount of the Indebtedness being Refinanced, in which case the U.S. Dollar Equivalent of such excess will be determined on the date such Refinancing Indebtedness is Incurred.
(F) Notwithstanding anything to the contrary in the Indenture, the Notes or the Guaranties, in no event shall an Incurrence of Indebtedness made on the basis of consolidated financial statements prepared in good faith to be in accordance with GAAP be subject to rescission or constitute a Default by reason of any requisite subsequent restatement of such financial statements that would have made such Incurrence prohibited at the time that it was made.
(G) Notwithstanding anything to the contrary in this Section 4.02, if any Indebtedness for money borrowed in the form of notes (including, without limitation, Additional Notes), or any guarantees thereof, are originally issued by the Issuer or any Restricted Subsidiary in a private placement transaction and are thereafter exchanged for substantially identical notes or guarantees of the same principal amount in an exchange offer pursuant to a registration statement on Form S-4 under the Securities Act, pursuant to a customary “A/B exchange,” then, for purposes of this Section 4.02, (x) the notes and guarantees issued in such exchange will be deemed to represent the same notes and guarantees surrendered in exchange therefor in such exchange; and (y) the issuance of such notes and guarantees in such exchange will be deemed not to be a new Incurrence of Indebtedness, provided that the Incurrence of the Indebtedness represented by such notes and guarantees in such private placement did not violate this Section 4.02.
Appears in 3 contracts
Sources: Supplemental Indenture (Kennedy-Wilson Holdings, Inc.), Supplemental Indenture (Kennedy-Wilson Holdings, Inc.), Supplemental Indenture (Kennedy-Wilson Holdings, Inc.)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company or a Restricted Subsidiary may Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto, the Consolidated Coverage Ratio equals or exceeds 2.0 2.25 to 11.0.
(2b) Notwithstanding the foregoing paragraph (1Section 4.03(a), the Company and its any Restricted Subsidiaries Subsidiary may incur any or all of Incur the following Indebtedness:
(a1) Indebtedness incurred by the Company Incurred pursuant to any Credit Facility, so long as the aggregate amount of all such Indebtedness outstanding under all Credit Facility or any other revolving credit arrangement; providedFacilities Incurred under this clause (1) does not, however, that, immediately after giving effect to any such incurrencethereto, exceed the greatest of (x) $1,050.0 million, less the aggregate principal amount of such Indebtedness then outstanding does not exceed all Permanent Principal Repayments of Priority Lien Debt since the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program Issue Date that are made in satisfaction of the Company or any Restricted Subsidiaryrequirements of Section 4.07, other than Indebtedness described in clause (By) below) and the sum of (i) 5035.0% of the book value Modified ACNTA as of the inventory date of such Incurrence and (z) the Borrowing Base as of the Company and its Restricted Subsidiaries and (ii) 85% date of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPsuch Incurrence;
(b2) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a any Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereof;
(c3) (A) the Securities;
(d) , any Additional Securities, any other Parity Lien Debt, any Junior Lien Debt and any unsecured Indebtedness in an aggregate principal amount outstanding, together with all other Indebtedness outstanding under this clause (b)(3)(A), not to exceed the greater of (x) $1,000.0 million and (y) (I) 65.0% of Modified ACNTA determined as of the date of such Incurrence minus (II) the aggregate amount of all Indebtedness outstanding under Credit Facilities Incurred under Section 4.03(b)(1) as of the date of such Incurrence (assuming for such purposes that all available amounts under Section 4.03(b)(1) are fully drawn); provided, however, that any Parity Lien Debt, Junior Lien Debt or unsecured Indebtedness Incurred under this Note clause (b)(3)(A) after the Issue Date shall not have a Stated Maturity any earlier than the Stated Maturity of the Securities, and (B) [Reserved];
(4) Indebtedness outstanding on the Issue Date (other than Indebtedness described in clause clauses (A1), (B2) or (C3) of this Section 3(d)(24.03(b));
(e5) Indebtedness of (A) a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company) and (B) the Company or a Restricted Subsidiary Incurred for the purpose of financing all or any part of the cost of acquiring Oil and Gas Properties or Carbon Dioxide Interests, another Person (other than a Person that was, immediately prior to such acquisition, a Subsidiary of the Company) engaged in the Oil and Gas Business or all or substantially all the assets of such a Person; provided, however, that in the case of each of clause (A) and clause (B) above, on the date of such Incurrence and after giving effect thereto, the Consolidated Coverage Ratio equals or exceeds 2.0 to 1.0;
(6) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(14.03(a) or pursuant to clause (CSection 4.03(b)(4) or (D5), this clause (6) or clause (7) below; provided, however, that to the extent such Refinancing Indebtedness directly or indirectly Refinances Indebtedness or Preferred Stock of a Restricted Subsidiary described in Section 4.03(b)(5), such Refinancing Indebtedness shall be Incurred only by such Restricted Subsidiary or the Company;
(7) Non-recourse Purchase Money Indebtedness;
(8) Indebtedness consisting of the Subsidiary Guarantees and any Guarantee by a Subsidiary Guarantor of Indebtedness Incurred by the Company pursuant to clauses (1) and (3) of this Section 3(d)(2) or this clause (E4.03(b);
(f9) Hedging Obligations Indebtedness consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunderIncurred by the Company and its Restricted Subsidiaries pursuant to this Indenture;
(g10) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described under Oil and Gas Hedging Contracts and Currency Agreements entered into in clause (B) above, the ordinary course of business for the purpose of limiting risks that arise in an amount not exceeding 95% the ordinary course of business of the aggregate unpaid balance of the Receivables Company and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Programits Restricted Subsidiaries;
(h11) Indebtedness in respect of bid, performance or surety obligations issued by or for the account of the Company or any Restricted Subsidiary in the ordinary course of business, including Guarantees and letters of credit functioning as or supporting such bid, performance or surety obligations (in each case other than for an obligation for money borrowed);
(12) Indebtedness of the Company or a Restricted Subsidiary Incurred to finance capital expenditures and the Company's Restricted Subsidiaries to the extent the net proceeds Refinancing Indebtedness Incurred in respect thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, when taken together with the amount of all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred Incurred pursuant to this clause (J)12) since the Issue Date and then outstanding, does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.20.0 million;
Appears in 3 contracts
Sources: Indenture (Denbury Resources Inc), Indenture (Denbury Resources Inc), Indenture (Denbury Resources Inc)
Limitation on Indebtedness. (1) The Company shall not, and shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, incur, directly or indirectly, create, incur, assume, issue, guarantee or in any Indebtedness unlessmanner become liable for or with respect to the payment of, on the date of such incurrenceany Indebtedness, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), except that the Company and its Restricted Subsidiaries may incur any or all (each of the following Indebtedness:which shall be given independent effect):
(a) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company evidenced by the Securities or any Restricted Subsidiaryotherwise arising under this Indenture, and additional Indebtedness which may be incurred from time to time through the issuance of notes, bonds, or other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory Obligations of the Company and its Restricted Subsidiaries and (iiwhether under this Indenture or under some other instrument) 85% which is pari passu or subordinated in right of payment with the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPSecurities;
(b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by its Subsidiaries outstanding on the Company or a Restricted SubsidiaryIssue Date; provided, howevernone of the instruments and agreements evidencing or governing such Indebtedness shall be amended, that modified or supplemented after the Issue Date to change any subsequent issuance terms of subordination, payment of Principal, interest, fees or transfer other amounts due, or rights of conversion, put, exchange or other similar rights or any Capital Stock which results in any such Restricted Subsidiary ceasing other covenants, terms or conditions thereof to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than less favorable to the Company or a Restricted Subsidiary) shall be deemedHolders than such terms, in each case, to constitute rights and conditions as is effect on the incurrence of such Indebtedness by the issuer thereof;Issue Date.
(c) Purchase money Indebtedness of the SecuritiesCompany described in Section 4.13(d) not to exceed an aggregate outstanding amount at any time of $5,000,000;
(d) Indebtedness outstanding as of the date of this Note (other than Indebtedness described in clause (A), (B) or (C) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and unsecured or secured by Property of the Company's Restricted Subsidiaries , which is superior in right of payment to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company Securities, in an aggregate principal amount which, together with all other Indebtedness not to exceed the highest aggregate Principal amount of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted Securities issued under this Section 3(d)(2)(J) Indenture if, immediately after giving pro forma effect to the incurrence thereof, no more than $20,000,000 Default or Event of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.Default shall have occurred;
Appears in 2 contracts
Sources: Indenture (Ibf Vi Guaranteed Income Fund), Indenture (Ibf Vi Guaranteed Income Fund)
Limitation on Indebtedness. (1a) The Company shall Issuer will not, and shall will not permit any Restricted Subsidiary to, incur, directly or indirectly, any Indebtedness unless, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries to, Incur any Indebtedness (including Acquired Indebtedness) other than Permitted Indebtedness; provided that the Issuer may incur any or all of the following Incur Indebtedness:
(a) Indebtedness incurred by the Company pursuant , in addition to the Credit Facility or any other revolving credit arrangement; providedPermitted Indebtedness, however, thatif, after giving effect to any such incurrence, the aggregate principal amount Incurrence of such Indebtedness then outstanding does not exceed and the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program receipt and application of the Company or any Restricted Subsidiaryproceeds thereof, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries Consolidated Leverage Ratio would be less than or equal to ___ to 1, for Indebtedness Incurred on or prior to ___________, or less than or equal to ___ to 1, for Indebtedness Incurred thereafter and (ii) 85% no Default or Event of Default shall have occurred and be continuing or occur as a consequence of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), actions set forth in each case determined in accordance with GAAP;this Section 10.11.
(b) Notwithstanding any other provision of this Section 10.11, the maximum amount of Indebtedness of that the Company owed to and held by Issuer or a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed may Incur pursuant to and held by the Company or a Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing this Section 10.11 shall not be deemed to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than exceeded due solely to the Company or a Restricted Subsidiary) shall be deemed, result of fluctuations in each case, to constitute the incurrence exchange rates of such Indebtedness by the issuer thereof;currencies.
(c) For purposes of determining any particular amount of Indebtedness under this Section 10.11, Guarantees, Liens or obligations with respect to letters of credit supporting Indebtedness otherwise included in the Securities;
(d) determination of such particular amount shall not be included. For purposes of determining compliance with this Section 10.11, in the event that an item of Indebtedness outstanding as meets the criteria of more than one of the date types of this Note (other than Indebtedness described in clause (A)the definition of "Indebtedness," the Issuer, (B) or (C) in its sole discretion, shall classify such item of this Section 3(d)(2));
(e) Refinancing Indebtedness and only be required to include the amount and type of such Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets one of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtednessclauses.
Appears in 2 contracts
Sources: Subordinated Debt Indenture (Caprock Communications Corp), Senior Debt Indenture (Caprock Communications Corp)
Limitation on Indebtedness. (1) The Company shall not, and shall not permit any Restricted Subsidiary to, create, incur, directly assume or indirectly, suffer to exist any Indebtedness unlessexcept for:
(i) Indebtedness created hereunder, under the other Note Documents and under the Senior Debt Documents;
(ii) Indebtedness owing by any wholly-owned Subsidiary to the Company or any other wholly-owned Subsidiary, and Indebtedness owing by the Company to any wholly-owned Subsidiary;
(iii) Indebtedness (A) under any interest rate swap or other hedging agreement, (B) evidenced by performance bonds issued in the ordinary course of business or reimbursement obligations in respect thereof, or (C) for bank overdrafts incurred in the ordinary course of business that are promptly repaid;
(iv) trade credit incurred to acquire goods, supplies, services and incurred in the ordinary course of business;
(v) Capitalized Lease Obligations and purchase money Indebtedness in a principal amount not exceeding $500,000 outstanding at any time;
(vi) subordinated debt on terms acceptable to the Agent, (a list of such existing debt is set forth on Schedule 6.02(b)(vi) hereto);
(vii) Indebtedness, which shall be unsecured, not otherwise permitted in any other provision of this Section 6.02(b); provided that the sum of the principal amount of such Indebtedness, plus the principal amount of Indebtedness outstanding under Section 6.02(b)(v) above, shall at no time exceed $500,000 in the aggregate;
(viii) The Company or a Subsidiary of the Company may become and remain liable with respect to Indebtedness of any Person assumed in connection with any acquisition of such Person (or all or a portion of its assets) and a Person that becomes a direct or indirect wholly owned Subsidiary of the Company as a result of any acquisition hereof may remain liable with respect to Indebtedness existing on the date of such incurrenceacquisition, the Consolidated Coverage Ratio exceeds 2.0 to 1.provided that such Indebtedness is not created in anticipation of such acquisition; and
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur any or all of the following Indebtedness:
(aix) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
(b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence of such Indebtedness by the issuer thereof;
(c) the Securities;
(d) Indebtedness outstanding as of the date of this Note (other than Indebtedness described in clause (A), (B) or (C) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding not to exceed $2,400,000 secured by a Lien on the date of such incurrence which was incurred pursuant to this clause (J)property located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
Appears in 2 contracts
Sources: Subordinated Note Agreement, Subordinated Note Agreement (Seracare Life Sciences Inc)
Limitation on Indebtedness. (1a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, incur, directly or indirectly, any Indebtedness unless, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur to, Incur any or all of Indebtedness (other than the following Indebtedness:
(a) Notes and Indebtedness incurred by existing on the Closing Date); provided that the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, thatmay Incur Indebtedness if, after giving effect to any the Incurrence of such incurrenceIndebtedness and the receipt and application of the proceeds therefrom, the Consolidated Leverage Ratio would be positive and (i) with respect to any Incurrence occurring from the Closing Date through January 1, 1999, greater than zero and less than 5.5:1 and (ii) with respect to any Incurrence occurring thereafter, greater than zero and less than 5.0:1. Notwithstanding the foregoing, the Company and any Restricted Subsidiary (except as specified below) may Incur each and all of the following: (i) Indebtedness of the Company (Guaranteed by Subsidiaries of the Company) outstanding at any time in an aggregate principal amount of such Indebtedness then outstanding does not to exceed the greater of (x) $175,000,000 55 million and (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (By) below) and the sum of (i) 5080% of the consolidated net book value of the inventory accounts receivable and 25% of the net book value of the inventory, in each case of the Company and its Restricted Subsidiaries and as set forth on the consolidated balance sheet of the Company then most recently filed pursuant to Section 4.18, less any amount of such Indebtedness permanently repaid as provided under Section 4.11; (ii) 85% of the book value of the accounts receivable of Indebtedness owed (A) to the Company and its Restricted Subsidiaries evidenced by an unsubordinated promissory note or (other than accounts receivable subject B) to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
(b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, provided that any subsequent issuance or transfer of any Capital Stock event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence an Incurrence of such Indebtedness not permitted by this clause (ii); (iii) Indebtedness issued in exchange for, or the net proceeds of which are used to refinance or refund, then outstanding Indebtedness (other than Indebtedness Incurred under clause (i), (ii), (iv), (vi), (viii), (x) or (xi) of this paragraph) and any refinancings thereof in an amount not to exceed the amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses); provided that Indebtedness the proceeds of which are used to refinance or refund the Notes or Indebtedness that is pari passu with, or subordinated in right of payment to, the Notes shall only be permitted under this clause (iii) if (A) in case the Notes are refinanced in part or the Indebtedness to be refinanced is pari passu with the Notes, such new Indebtedness, by its terms or by the issuer thereof;
terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made pari passu with, or subordinate in right of payment to, the remaining Notes, (cB) in case the Securities;
Indebtedness to be refinanced is subordinated in right of payment to the Notes, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes and (dC) Indebtedness outstanding such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded; and provided further that in no event may Indebtedness of the Company be refinanced by means of any Indebtedness of any Restricted Subsidiary pursuant to this Note (other than Indebtedness described in clause (iii); (iv) Indebtedness (A)) in respect of performance, surety or appeal bonds or letters of credit supporting trade payables, in each case provided in the ordinary course of business, (B) under Currency Agreements and Interest Rate Agreements; provided that such agreements (1) are designed solely to protect the Company or its Restricted Subsidiaries against fluctuations in foreign currency exchange rates or interest rates and (2) do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder; and (C) arising from agreements providing for indemnification, adjustment of this Section 3(d)(2));
purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary (e) Refinancing Indebtedness in respect other than Guarantees of Indebtedness incurred pursuant to Section 3(d)(1) Incurred by any Person acquiring all or pursuant to clause (C) any portion of such business, assets or (D) Restricted Subsidiary for the purpose of this Section 3(d)(2) or this clause (Efinancing such acquisition);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an a principal amount not exceeding 95% of to exceed the aggregate unpaid balance of gross proceeds actually received by the Receivables and Related Assets of Company or any Restricted Subsidiary in connection with such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
disposition; (hv) Indebtedness of the Company and the Company's Restricted Subsidiaries , to the extent the net proceeds thereof are concurrently promptly (A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change in Control or (B) deposited to defease all Securities pursuant to the terms Notes as described in Article Eight; (vi) Guarantees of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries and Guarantees of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on by any Restricted Subsidiary, provided the date Guarantee of such incurrence which was incurred Indebtedness is permitted by and made in accordance with Section 4.07; (vii) Indebtedness Incurred to finance the cost (including, without limitation, the cost of design, development, construction, acquisition, installation or integration) of network assets used in the telecommunications business (including, without limitation, ownership interests in minimum investment units or indefeasible rights of use); (viii) Indebtedness of the Company, not to exceed at any one time outstanding, 2 times the (A) Net Cash Proceeds received by the Company after the Closing Date as a capital contribution or from the issuance and sale of its Capital Stock (other than Disqualified Stock) to a Person that is not a Subsidiary of the Company, to the extent such Net Cash Proceeds have not been used pursuant to this clause (JC)(2) of the first paragraph or clause (iii), (iv) or (vi) of the second paragraph of Section 4.04 to make a Restricted Payment and (B) 80% of the fair market value of property (other than cash and cash equivalents) received by the Company after the Closing Date from a contribution of capital or the sale of its Capital Stock (other than Disqualified Stock) to a Person that is not a Subsidiary of the Company, to the extent such capital contribution or sale of Capital Stock has not been used pursuant to clause (iii), (iv) or (ix) of the second paragraph of Section 4.04 to make a Restricted Payment; provided that such Indebtedness does not mature prior to the Stated Maturity of the Notes and has an Average Life longer than the Notes; (ix) Indebtedness of the Company Incurred to finance capital expenditures in an amount not to exceed $55,000,000. With respect 5 million in any given fiscal year of the Company; (x) Indebtedness of Foreign Subsidiaries, not to exceed $5 million at any one time outstanding; and (xi) Indebtedness of the Company (in addition to Indebtedness permitted under this Section 3(d)(2)(Jclauses (i) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.through (x)
Appears in 2 contracts
Sources: Indenture (Ipc Information Systems Inc), Indenture (Ipc Information Systems Inc)
Limitation on Indebtedness. (1a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, incur, directly or indirectly, any Indebtedness unless, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur to, Incur any or all of Indebtedness (other than the following Indebtedness:
(a) Senior Notes, the Debentures and Indebtedness incurred by existing on the Senior Notes Reduction Date); provided that the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, thatmay Incur Indebtedness if, after giving effect to any the Incurrence of such incurrenceIndebtedness and the receipt and application of the proceeds therefrom, the Consolidated Leverage Ratio would be greater than zero and less than 6 to 1. Notwithstanding the foregoing, the Company and any Restricted Subsidiary (except as specified below) may Incur each and all of the following: (i) Indebtedness outstanding at any time that is (A) Incurred to finance the purchase, construction, launch, insurance for and other costs with respect to Orion 2 and Orion 3 or (B) in an aggregate principal amount not to exceed (1) until Orion 2 or Orion 3 has been successfully delivered in orbit, $50 million, (2) after the first of such Indebtedness then outstanding does not exceed the greater of Orion 2 or Orion 3 has been successfully delivered in orbit, $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries 100 million and (ii3) 85% after the second of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company Orion 2 or any Restricted Subsidiary)Orion 3 has been successfully delivered in orbit, $150 million, in each case determined in accordance with GAAP;
under this clause (bi)(B); (ii) Indebtedness of the Company owed (A) to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a (B) to any of its Restricted SubsidiarySubsidiaries; provided, however, provided that any subsequent issuance or transfer of any Capital Stock event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence an Incurrence of such Indebtedness not permitted by this clause (ii); (iii) Indebtedness issued in exchange for, or the net proceeds of which are used to refinance or refund, then outstanding Indebtedness, other than Indebtedness Incurred under clause (i)(B), (ii), (iv), (vi) or (viii) of this paragraph, and any refinancings thereof in an amount not to exceed the amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses); provided that Indebtedness the proceeds of which are used to refinance the Debentures, the Subsidiary Guarantee or Indebtedness that is pari passu with, or subordinated in right of payment to, the Debentures shall only be permitted under this clause (iii) if (A) in case the Debentures or the Subsidiary Guarantee are refinanced in part or the Indebtedness to be refinanced is pari passu with the Debentures or the Subsidiary Guarantee, such new Indebtedness, by its terms or by the issuer thereof;
terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made pari passu with, or subordinate in right of payment to, the remaining Debentures or the Subsidiary Guarantee, as the case may be, (cB) in case the Securities;
Indebtedness to be refinanced is subordinated in right of payment to the Debentures or the Subsidiary Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Debentures or the Subsidiary Guarantee at least to the extent that the Indebtedness to be refinanced is subordinated to the Debentures or the Subsidiary Guarantee, as the case may be, and (dC) Indebtedness outstanding such new Indebtedness, determined as of the date of this Note Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded; (other than iv) Indebtedness described in clause (A)) in respect of performance, surety or appeal bonds provided in the ordinary course of business, (B) or (C) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.Currency
Appears in 2 contracts
Sources: Debenture Purchase Agreement (British Aerospace Holdings Inc), Debenture Purchase Agreement (Orion Newco Services Inc)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, incur, directly or indirectly, Incur any Indebtedness unless(including Acquired Indebtedness); provided, however, that the Company and the Guarantors may Incur Indebtedness if on the date of such incurrence, thereof and after giving effect thereto on a pro forma basis:
(1) the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), for the Company and its Restricted Subsidiaries may incur any is at least 2.00 to 1.00; and
(2) no Default or all Event of Default will have occurred or be continuing or would occur as a consequence of Incurring the Indebtedness or entering into the transactions relating to such Incurrence.
(b) The provisions of Section 4.09(a) shall not prohibit the Incurrence of the following Indebtedness:
(a1) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted SubsidiarySubsidiaries Incurred under a Debt Facility and the issuance and creation of letters of credit and bankers' acceptances thereunder (with undrawn trade letters of credit and reimbursement obligations relating to trade letters of credit satisfied within 30 days being excluded, and bankers' acceptances being deemed to have a principal amount equal to the face amount thereof) in an aggregate amount not to exceed the greater of (A) $550.0 million and (B) 12.5% of Total Assets outstanding at the time of Incurrence;
(2) Indebtedness represented by the Notes (including any Note Guarantee) (other than any Additional Notes);
(3) Indebtedness of the Company and any of its Restricted Subsidiaries in existence on the Issue Date (other than Indebtedness described in clause clauses (B) below1), (2), (5), (7), (9), (10) and the sum (11) of this Section 4.09(b));
(i4) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of Guarantees by the Company or any a Restricted Subsidiary), in each case determined Subsidiary of Indebtedness permitted to be Incurred by the Company or a Restricted Subsidiary in accordance with GAAPthe provisions of this Indenture; provided that in the event such Indebtedness that is being Guaranteed is a Subordinated Obligation or a Guarantor Subordinated Obligation, then the related Guarantee shall be subordinated in right of payment to the Notes or the Note Guarantee, as the case may be;
(b5) Indebtedness of the Company owed owing to and held by a any of its Restricted Subsidiary and Subsidiaries or Indebtedness of a Restricted Subsidiary owed of the Company owing to and held by the Company or a any other Restricted SubsidiarySubsidiary of the Company; provided, however,
(a) if the Company is the obligor on Indebtedness owing to a Non-Guarantor, that such Indebtedness is unsecured and expressly subordinated in right of payment in full to all Obligations with respect to the Notes;
(b) if a Guarantor is the obligor on such Indebtedness and a Non-Guarantor is the obligee, such Indebtedness is unsecured and expressly subordinated in right of payment to the Note Guarantee of such Guarantor; and
(c) (i) any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be Indebtedness being beneficially held by a Restricted Subsidiary or any subsequent transfer of such Indebtedness (Person other than to the Company or a any of its Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence of such Indebtedness by the issuer thereof;
(c) the Securities;
(d) Indebtedness outstanding as of the date of this Note (other than Indebtedness described in clause (A), (B) or (C) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.Subsidiaries; and
Appears in 2 contracts
Sources: Indenture (Hudbay Minerals Inc.), Indenture (Hudbay Minerals Inc.)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company shall be entitled to Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto on a pro forma basis no Default has occurred and is continuing and, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2b) Notwithstanding the foregoing paragraph (1a), the Company and its the Restricted Subsidiaries may incur shall be entitled to Incur any or all of the following Indebtedness:
(ai) Indebtedness incurred Incurred by the Company Company, any Financing Entity and any Foreign Restricted Subsidiary pursuant to the any Credit Facility or any other revolving credit arrangement; Facilities, provided, however, that, immediately after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such all Indebtedness Incurred under this clause (i) and then outstanding does not exceed the greater of (A) $175,000,000 (750 million less the then outstanding sum of all principal amount of payments with respect to such Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause pursuant to Section 4.15(b)(iii)(1) and (B) below) and the sum of (ix) 5060% of the book value of the inventory of the Company and its Restricted Subsidiaries and (iiy) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries Subsidiaries, provided further, however, that in no event shall the aggregate principal amount of all Indebtedness Incurred under this clause (other than accounts receivable subject to i) at any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPtime outstanding exceed $1.2 billion;
(bii) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Wholly Owned Subsidiary; provided, however, that (A) any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Wholly Owned Subsidiary ceasing to be a Restricted Wholly Owned Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Wholly Owned Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereofobligor thereon and (B) if the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes;
(ciii) the SecuritiesNotes and the Exchange Notes (other than any Additional Notes) and any other Indebtedness of the Company or any Restricted Subsidiary outstanding on the Issue Date;
(div) Indebtedness Incurred or outstanding as of on or before the date of this Note Separation Date (other than Indebtedness described in clause (A), (Bi) or any other clause (Cother than clause (xvii)) of this Section 3(d)(24.12(b)), to the extent it does not exceed (w) the amount of indebtedness that is Attributed to the U. S. Steel Group on its balance sheet as of March 31, 2001 less (x) the amount of any Indebtedness described in clause (iii) of this Section 4.12(b) or any Indebtedness described in clause (vi) or (vii) of this Section 4.12(b) that is Incurred by the Company pursuant to the Financial Matters Agreement less (y) $629 million plus (z) $40 million;
(v) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Subsidiary was acquired by the Company (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by the Company); provided, however, that on the date of such acquisition and after giving pro forma effect thereto, the Company would have been able to Incur at least $1.00 of additional Indebtedness pursuant to Section 4.12(a);
(evi) Industrial Revenue Bond Obligations, so long as the aggregate principal amount of all Industrial Revenue Bond Obligations (inclusive of any in respect of which the Company becomes directly or indirectly liable pursuant to the Financial Matters Agreement) does not exceed $600 million;
(vii) Indebtedness to Marathon Oil Corporation Incurred pursuant to the Financial Matters Agreement in respect of Capital Lease Obligations, in an aggregate principal amount not to exceed $92 million;
(viii) Indebtedness to Marathon Oil Corporation Incurred pursuant to the Financial Matters Agreement in respect of Guarantees of USX Corporation, in an aggregate principal amount not to exceed $145 million;
(ix) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(14.12(a) or pursuant to clause (Ciii), (iv), (v) or (Dvii) of this Section 3(d)(24.12(b) or this clause (Eix); provided, however, that to the extent such Refinancing Indebtedness directly or indirectly Refinances Indebtedness of a Subsidiary Incurred pursuant to clause (v) of this Section 4.12(b), such Refinancing Indebtedness shall be Incurred only by such Subsidiary or by the Company;
(fx) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunderIncurred by the Company pursuant to the Indenture or to mitigate currency or business risk;
(gxi) obligations in respect of performance, bid and surety bonds and completion guarantees provided by the Company or any Restricted Subsidiary in the ordinary course of business;
(xii) Indebtedness incurred arising from overdraft conditions honored by a Receivables Subsidiarybank or other financial institution in the ordinary course of business; provided, other however, that such Indebtedness is extinguished within two Business Days of its Incurrence;
(xiii) Guarantees by the Company of obligations of any of its joint ventures in an aggregate amount not to exceed $100 million;
(xiv) Subordinated Obligations not to exceed $200 million which (x) are convertible into equity securities of the Company, (y) have a Stated Maturity after the first anniversary of the Stated Maturity of any series of Notes then outstanding and (z) have an Average Life that is greater than Indebtedness described in clause the Average Life of any series of Notes then outstanding;
(Bxv) above, Attributable Debt related to Sale/Leaseback Transactions in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.150 million;
Appears in 2 contracts
Sources: Indenture (United States Steel Corp), Indenture (United States Steel Corp)
Limitation on Indebtedness. (1a) The Company Issuer shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, incurIncur any Indebtedness; provided, directly or indirectlyhowever, that the Issuer and any Guarantor may, Incur Indebtedness unless, if on the date of thereof, giving pro forma effect to such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding for the foregoing paragraph (1), the Company Issuer and its Restricted Subsidiaries may incur any or all is at least 2.00 to 1.00.
(b) Section 4.3(a) will not prohibit the Incurrence of the following Indebtedness:
(a) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
(b1) Indebtedness of the Company owed Issuer and of its Restricted Subsidiaries Incurred under (a) the Time Warner Revolving Credit Facility and (b) the Time Warner Term Loan Credit Facility;
(2) Indebtedness of the Issuer owing to and held by a any Restricted Subsidiary and or Indebtedness of a Restricted Subsidiary owed owing to and held by the Company Issuer or a any Restricted Subsidiary; provided, however, that that: (a) any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be Indebtedness being held by a Person other than the Issuer or a Restricted Subsidiary and (b) any sale or any subsequent other transfer of any such Indebtedness (to a Person other than to the Company Issuer or a Restricted Subsidiary) Subsidiary of the Issuer shall be deemed, in each case, to constitute the incurrence an Incurrence of such Indebtedness by the issuer thereofIssuer or such Restricted Subsidiary, as the case may be;
(c3) Indebtedness represented by the SecuritiesNotes (excluding any Additional Notes) and by any Guarantees of the Notes;
(d4) Indebtedness represented by (a) any Indebtedness (other than the Indebtedness described in clauses (1), (2), (3), (6), (7), (8), (9) and (10) of this Section 4.3(b)) outstanding as on the Issue Date and (b) any Refinancing Indebtedness Incurred in respect of any Indebtedness described in this clause (4) or clauses (1)(a), (3) or (5) or Incurred pursuant to Section 4.3(a);
(5) Indebtedness of a Restricted Subsidiary Incurred and outstanding on the date of this Note on which such Restricted Subsidiary was acquired by the Issuer (other than Indebtedness described Incurred (a) to provide all or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Issuer or (b) otherwise in connection with, or in contemplation of, such acquisition); provided, however, that at the time such Restricted Subsidiary is acquired by the Issuer, the Issuer would have been able to Incur $1.00 of additional Indebtedness pursuant to Section 4.3(a) after giving effect to such acquisition and the Incurrence of such Indebtedness pursuant to this clause (A), (B) or (C) of this Section 3(d)(2)5);
(e6) Refinancing Indebtedness under Currency Agreements and Interest Rate Agreements; provided that in respect the case of Indebtedness incurred pursuant Currency Agreements, such Currency Agreements are related to Section 3(d)(1) business transactions of the Issuer or pursuant to clause its Restricted Subsidiaries entered into in the ordinary course of business and not for speculative purposes and in the case of Currency Agreements and Interest Rate Agreements, such Currency Agreements and Interest Rate Agreements are entered into for bona fide hedging purposes of the Issuer or its Restricted Subsidiaries (C) in each case, as determined in good faith by the Board of Directors or (D) senior management of this Section 3(d)(2) or this clause (Ethe Issuer);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h7) Indebtedness of the Company and the Company's Issuer or any of its Restricted Subsidiaries represented by Capitalized Lease Obligations, mortgage financings or purchase money obligations with respect to assets other than Capital Stock or other Investments, in each case incurred for the extent the net proceeds thereof are concurrently deposited to defease purpose of financing all Securities pursuant to the terms or any part of the Indenture purchase price or all New Notes pursuant to cost of construction or improvements of property used in the terms herein;
(i) Indebtedness represented by guarantees by business of the Company Issuer or the Company's such Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company Subsidiary, in an aggregate principal amount not to exceed €50 million at any time outstanding less the amount of any such Indebtedness incurred prior to the Issue Date in reliance on the corresponding provision of the 2009 Notes;
(8) Indebtedness Incurred in respect of workers’ compensation claims, self-insurance obligations, performance, surety and similar bonds and completion guarantees provided by the Issuer or a Restricted Subsidiary in the ordinary course of business;
(9) Indebtedness arising from agreements of the Issuer or a Restricted Subsidiary 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 Capital Stock of a Restricted Subsidiary, provided that the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the Issuer and its Restricted Subsidiaries in connection with such disposition;
(10) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided, however, that such Indebtedness is extinguished within five Business Days of Incurrence;
(11) in addition to the items referred to in clauses (1) through (10) above and (12) and (13) below, Indebtedness (including Additional Notes) of the Issuer and its Restricted Subsidiaries in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause (11) and then outstanding, will not exceed €40 million at any time outstanding less the amount of any such Indebtedness incurred prior to the Issue Date in reliance on the corresponding provision of the 2009 Notes; provided that for the purposes of determining the amount of Indebtedness outstanding pursuant to this clause (11), such Indebtedness shall exclude interest paid in the form of an increase in the outstanding principal amount of such Indebtedness or payment in kind notes issued in payment of such interest;
(12) customer deposits and advance payments received in the ordinary course of business from customers for goods purchased in the ordinary course of business; and
(13) in addition to the items referred to in clauses (1) through (12) above, Indebtedness (including Additional Notes) of the Issuer and the Guarantors in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause (13) and then outstanding, will not exceed €40 million at any time outstanding; provided that for the purposes of determining the amount of Indebtedness outstanding pursuant to this clause (13), such Indebtedness shall exclude interest paid in the form of an increase in the outstanding principal amount of such Indebtedness or payment in kind notes issued in payment of such interest. In each case above, debt permitted to be Incurred also is permitted to include any “parallel debt” or similar obligations created in respect thereof.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 4.3:
(1) in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in Sections 4.3(a) and 4.3(b), the Issuer, in its sole discretion, will classify such item of Indebtedness on the date of Incurrence, and may from time to time reclassify such item of Indebtedness, and only be required to include the amount and type of such Indebtedness in one of such clauses;
(2) all Indebtedness outstanding on the Issue Date under the Time Warner Credit Facilities shall be deemed initially Incurred on the Issue Date under clause (1) of Section 4.3(b) and not under Section 4.3(a) or clause 4(a) of Section 4.3(b), and may not be reclassified pursuant to clause (1) of this Section 4.3(c); and
(3) the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with GAAP. Accrual of interest, accrual of dividends, the accretion of accreted value, the payment of interest in the form of additional Indebtedness and the payment of dividends in the form of additional shares of Preferred Stock will not be deemed to be an Incurrence of Indebtedness for purposes of this Section 4.3. The amount of any Indebtedness outstanding as of any date shall be (i) the accreted value of the Indebtedness in the case of any Indebtedness issued with original issue discount and (ii) the principal amount or liquidation preference thereof, together with all any interest thereon that is more than 30 days past due, in the case of any other Indebtedness. If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary of the Issuer as of such date (and, if such Indebtedness is not permitted to be Incurred as of such date under this Section 4.3, the Issuer shall be in Default hereunder). For purposes of determining compliance with any euro denominated restriction on the Incurrence of Indebtedness, the euro equivalent principal amount of Indebtedness denominated in a currency other than the euro shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that if such Indebtedness is Incurred to refinance other Indebtedness of denominated in a currency other than the Company outstanding euro, and such refinancing would cause the applicable euro denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such incurrence which was incurred refinancing, such euro denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. Notwithstanding any other provision of this Section 4.3, the maximum amount of Indebtedness that the Issuer may Incur pursuant to this clause (J)Section 4.3 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness incurred to refinance other Indebtedness, does not exceed $55,000,000. With respect if Incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 is denominated that is in effect on the date of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtednessrefinancing.
Appears in 2 contracts
Sources: Indenture (Central European Media Enterprises N.V.), Indenture (CME Media Enterprises B.V.)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company or a Restricted Subsidiary may Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto, the Consolidated Coverage Ratio equals or exceeds 2.0 2.25 to 11.0.
(2b) Notwithstanding the foregoing paragraph (1Section 4.03(a), the Company and its any Restricted Subsidiaries Subsidiary may incur any or all of Incur the following Indebtedness:
(a1) Indebtedness incurred by the Company Incurred pursuant to any Credit Facility, so long as the aggregate amount of all Indebtedness outstanding under all Credit Facility Facilities does not, at any one time, exceed the aggregate amount of borrowing availability as of such date under all Credit Facilities that determine availability on the basis of a borrowing base or any other revolving credit arrangementasset-based calculation; provided, however, that, after giving effect to any that in no event shall such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of (x) $175,000,000 300 million and (less the then outstanding principal amount y) 75% of Indebtedness arising under any Receivables Program ACNTA as of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum date of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPsuch Incurrence;
(b2) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Wholly Owned Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Wholly Owned Subsidiary ceasing to be a Restricted Wholly Owned Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted another Wholly Owned Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereof;
(c3) Indebtedness of the Company represented by the Securities (other than any Additional Securities);
(d4) Indebtedness outstanding as of the date of this Note on February 26, 1998 (other than Indebtedness described in clause paragraph (Ab) (1), (B2) or (C3) of this Section 3(d)(2)4.03);
(e5) Indebtedness of (A) a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company) and (B) the Company or a Restricted Subsidiary Incurred for the purpose of financing all or any part of the cost of acquiring oil and gas properties, another Person (other than a Person that was, immediately prior to such acquisition, a Subsidiary of the Company) engaged in the Oil and Gas Business or all or substantially all the assets of such a Person; provided, however, that in the case of each of clause (A) and clause (B) above, on the date of such Incurrence and after giving effect thereto, the Consolidated Coverage Ratio equals or exceeds 2.0 to 1.0;
(6) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(14.03(a) or Section 4.03(b)(3), (4), (5), this clause (6) or clause (7) below; provided, however, that to the extent such Refinancing Indebtedness directly or indirectly Refinances Indebtedness or Preferred Stock of a Restricted Subsidiary described in Section 4.03(b)(5), such Refinancing Indebtedness shall be Incurred only by such Restricted Subsidiary or the Company;
(7) Non-recourse Purchase Money Indebtedness;
(8) Indebtedness with respect to Production Payments; provided, however, that any such Indebtedness shall be Limited Recourse Production Payments; provided further, however, that the Net Present Value of the reserves related to such Production Payments shall not exceed 30% of ACNTA at the time of Incurrence;
(9) Indebtedness consisting of the Subsidiary Guarantees and any Guarantee by a Subsidiary Guarantor of Indebtedness Incurred by the Company pursuant to clause paragraphs (Cb)(1) or and (D3) of this Section 3(d)(2) or this clause (E)4.03;
(f10) Hedging Obligations Indebtedness consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunderIncurred by the Company and its Restricted Subsidiaries pursuant to the Indenture;
(g11) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described under Oil and Gas Hedging Contracts and Currency Agreements entered into in clause (B) above, the ordinary course of business for the purpose of limiting risks that arise in an amount not exceeding 95% the ordinary course of business of the aggregate unpaid balance of the Receivables Company and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Programits Restricted Subsidiaries;
(h12) Indebtedness in respect of bid, performance or surety obligations issued by or for the account of the Company or any Restricted Subsidiary in the ordinary course of business, including Guarantees and letters of credit functioning as or supporting such bid, performance or surety obligations (in each case other than for an obligation for money borrowed);
(13) Indebtedness of the Company or a Restricted Subsidiary Incurred to finance capital expenditures and the Company's Restricted Subsidiaries to the extent the net proceeds Refinancing Indebtedness Incurred in respect thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, when taken together with the amount of all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred Incurred pursuant to this clause (J)13) since February 26, 1998 and then outstanding, does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.20 million;
Appears in 1 contract
Sources: Indenture (Denbury Resources Inc)
Limitation on Indebtedness. (1a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness unless, on the date of immediately after giving effect to such incurrenceIncurrence, the Consolidated Coverage Ratio exceeds 2.0 2.00 to 11 if such Indebtedness is Incurred prior to June 15, 1999, and 2.25 to 1 if such Indebtedness is Incurred thereafter.
(2b) Notwithstanding the foregoing paragraph (1Section 4.3(a), the Company and its Restricted Subsidiaries may incur Incur any or all of the following Indebtedness:
(ai) Indebtedness incurred by the Company and other Obligations Incurred pursuant to the Bank Credit Facility or any other revolving credit arrangementAgreements; provided, however, that, after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such Indebtedness and other Obligations then outstanding outstanding, does not exceed the greater of (x) $175,000,000 110 million and (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (By) below) and the sum of (iA) 5060% of the net book value of the inventory of the Company and its Restricted Subsidiaries and Subsidiaries, (iiB) 8590% of the net book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary)Subsidiaries, in each case determined in accordance with GAAPGAAP and (C) $70 million;
(bii) Indebtedness represented by the Securities issued in the Offering (and the Exchange Securities);
(iii) Indebtedness outstanding on the Issue Date (other than Indebtedness described in clause (i) of this Section 4.3(b)), including, without limitation, the Existing Preferred Stock;
(iv) Indebtedness of the Company owed to and held by a Restricted any Wholly Owned Subsidiary and or Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Wholly Owned Subsidiary; provided, however, that any subsequent sub- 52 sequent issuance or transfer of any Capital Stock which results in any such Restricted Wholly Owned Subsidiary ceasing to be a Restricted Wholly Owned Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Wholly Owned Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereof;
(c) the Securities;
(d) Indebtedness outstanding as of the date of this Note (other than Indebtedness described in clause (A), (B) or (C) of this Section 3(d)(2));
(ev) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(1paragraph (a) or pursuant to clause (C) or i), (D) of this Section 3(d)(2ii), (iii) or this clause (Ev) of this Section 4.3(b);
(fvi) Indebtedness in respect of performance bonds, bankers' acceptances, letters of credit and surety or appeal bonds entered into by the Company and the Restricted Subsidiaries in the ordinary course of their business;
(vii) Hedging Obligations consisting of Interest Rate or Agreements and Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiaryentered into in the ordinary course of business and not for the purpose of speculation; provided, other than Indebtedness described in clause (B) abovehowever, that, in an amount the case of Currency Agreements and Interest Rate Agreements, such Currency Agreements and Interest Rate Agreements do not exceeding 95% of increase the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date at any time other than as a result of such incurrence which was incurred pursuant to this clause (J)fluctuations in foreign currency exchange rates or interest rates or by reason of fees, does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.indemnities and compensation payable thereunder;
Appears in 1 contract
Sources: Indenture (BMG North America LTD)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company or a Restricted Subsidiary may Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto, the Consolidated Coverage Ratio equals or exceeds 2.0 2.25 to 11.0.
(2b) Notwithstanding the foregoing paragraph (1Section 4.03(a), the Company and its any Restricted Subsidiaries Subsidiary may incur any or all of Incur the following Indebtedness:
(a1) Indebtedness incurred by the Company Incurred pursuant to any Credit Facility, so long as the aggregate amount of all Indebtedness outstanding under all Credit Facility Facilities does not, at any one time, exceed the aggregate amount of borrowing availability as of such date under all Credit Facilities that determine availability on the basis of a borrowing base or any other revolving credit arrangementasset-based calculation; provided, however, that, after giving effect to any that in no event shall such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of (x) $175,000,000 500.0 million and (less the then outstanding principal amount y) 75% of Indebtedness arising under any Receivables Program ACNTA as of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum date of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPsuch Incurrence;
(b2) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a any Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereof;
(c3) Indebtedness of the Company represented by the Securities (other than any Additional Securities);
(d4) Indebtedness outstanding as of on the date of this Note Issue Date (other than Indebtedness described in clause paragraph (Ab)(1), (B2) or (C3) of this Section 3(d)(24.03(b));
(e5) Indebtedness of (A) a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company) and (B) the Company or a Restricted Subsidiary Incurred for the purpose of financing all or any part of the cost of acquiring oil and gas properties, another Person (other than a Person that was, immediately prior to such acquisition, a Subsidiary of the Company) engaged in the Oil and Gas Business or all or substantially all the assets of such a Person; provided, however, that in the case of each of clause (A) and clause (B) above, on the date of such Incurrence and after giving effect thereto, the Consolidated Coverage Ratio equals or exceeds 2.0 to 1.0;
(6) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(14.03(a) or pursuant to clause Section 4.03(b)(3), (C4) or (D5), this clause (6) or clause (7) below; provided, however, that to the extent such Refinancing Indebtedness directly or indirectly Refinances Indebtedness or Preferred Stock of a Restricted Subsidiary described in Section 4.03(b)(5), such Refinancing Indebtedness shall be Incurred only by such Restricted Subsidiary or the Company;
(7) Non-recourse Purchase Money Indebtedness;
(8) Indebtedness consisting of the Subsidiary Guarantees and any Guarantee by a Subsidiary Guarantor of Indebtedness Incurred by the Company pursuant to paragraphs (b)(1) and (3) of this Section 3(d)(2) or this clause (E4.03(b);
(f9) Hedging Obligations Indebtedness consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunderIncurred by the Company and its Restricted Subsidiaries pursuant to this Indenture;
(g10) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described under Oil and Gas Hedging Contracts and Currency Agreements entered into in clause (B) above, the ordinary course of business for the purpose of limiting risks that arise in an amount not exceeding 95% the ordinary course of business of the aggregate unpaid balance of the Receivables Company and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Programits Restricted Subsidiaries;
(h11) Indebtedness in respect of bid, performance or surety obligations issued by or for the account of the Company or any Restricted Subsidiary in the ordinary course of business, including Guarantees and letters of credit functioning as or supporting such bid, performance or surety obligations (in each case other than for an obligation for money borrowed);
(12) Indebtedness of the Company or a Restricted Subsidiary Incurred to finance capital expenditures and the Company's Restricted Subsidiaries to the extent the net proceeds Refinancing Indebtedness Incurred in respect thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, when taken together with the amount of all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred Incurred pursuant to this clause (J)12) since the Issue Date and then outstanding, does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.20.0 million;
Appears in 1 contract
Sources: Indenture (Denbury Resources Inc)
Limitation on Indebtedness. (1a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, incur, directly or indirectly, any Indebtedness unless, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur to, Incur any Indebtedness (other than the Notes and the Dollar Notes (including any Exchange Notes and any Exchange Notes (as defined in the Dollar Notes Indenture), but excluding any Additional Notes or all of Additional Notes (as defined in the following Indebtedness:
(a) Dollar Notes Indenture)), and other Indebtedness incurred by existing on the Closing Date); PROVIDED that the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, thatPermanent Guarantor may Incur Indebtedness if, after giving effect to any the Incurrence of such incurrenceIndebtedness and the receipt and application of the proceeds therefrom, the Consolidated Leverage Ratio would be greater than zero and less than 6:1. Notwithstanding the foregoing, the Company and any Restricted Subsidiary (except as specified below) may Incur each and all of the following:
(i) Indebtedness outstanding at any time in an aggregate principal amount not to exceed (after giving effect to any refinancing thereof) the sum of (a) $100 million, less any amount of such Indebtedness then outstanding does not exceed permanently repaid as provided under Section 4.11 of this Indenture, plus (b) an amount equal to the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum lesser of (i1) 5080% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the consolidated book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPGAAP (determined as of the end of the most recently ended fiscal quarter for which reports have been filed with the Commission or provided to the Trustee) and (2) $100 million;
(bii) Indebtedness of owed (A) to the Company owed to and held evidenced by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed promissory note or (B) to and held by the Company or a any Restricted Subsidiary; provided, however, PROVIDED that any subsequent issuance or transfer of any Capital Stock event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence an Incurrence of such Indebtedness not permitted by the issuer thereofthis clause (ii);
(c) the Securities;
(diii) Indebtedness issued to refinance then outstanding Indebtedness (other than Indebtedness Incurred under clause (i), (ii), (iv), (vi), (viii), (xi) or (xii) of this paragraph) and any refinancings thereof, in an amount not to exceed the amount so refinanced (plus premiums, accrued interest, fees and expenses); PROVIDED that Indebtedness the proceeds of which are used to refinance the Notes in part or Indebtedness that is PARI PASSU with, or expressly subordinated in right of payment to, the Notes or any Notes Guarantee shall only be permitted under this clause (iii) if (A) in case the Notes are refinanced in part or the Indebtedness to be refinanced is PARI PASSU with the Notes or any Notes Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made PARI PASSU with, or expressly subordinate in right of payment to, the remaining Notes or any Notes Guarantee, (B) in case the Indebtedness to be refinanced is expressly subordinated in right of payment to the Notes or any Notes Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes or any Notes Guarantee at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes or any Notes Guarantee and (C) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced; and PROVIDED FURTHER that in no event may Indebtedness of the Company be refinanced by means of any Indebtedness of any Restricted Subsidiary pursuant to this Note (other than Indebtedness described in clause (A), (B) or (C) of this Section 3(d)(2)iii);
(eiv) Refinancing Indebtedness (A) in respect of Indebtedness incurred performance, surety, appeal or other similar bonds provided in the ordinary course of business and (B) arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from Guarantees or letters of credit, bankers' acceptances, surety or performance bonds or other similar instruments securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to Section 3(d)(1) such agreements, in any case Incurred in connection with the disposition of any business, assets or pursuant Restricted Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition), in a principal amount not to clause (C) exceed the gross proceeds actually received by the Company or (D) of this Section 3(d)(2) or this clause (E)any Restricted Subsidiary in connection with such disposition;
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(hv) Indebtedness of the Company and the Company's Restricted Subsidiaries or any Permanent Guarantor, to the extent the net proceeds thereof are concurrently promptly (A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change in Control or to purchase Dollar Notes tendered in an offer to purchase under the Dollar Notes Indenture or (B) deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms hereinas described under Article Eight;
(ivi) Guarantees of the Notes and Guarantees of Indebtedness of the Company by any Restricted Subsidiary provided the Guarantee of such Indebtedness is permitted by and made in accordance with Section 4.07; and Guarantees of Indebtedness of any Restricted Subsidiary by any Restricted Subsidiary provided such Restricted Subsidiary simultaneously executes and delivers a supplemental indenture to this Indenture providing for a Guarantee of payment of the Notes by such Restricted Subsidiary;
(vii) Indebtedness represented (including Guarantees and the German Network L/C) Incurred to finance or refinance the cost (including the cost of design, development, acquisition, construction, installation, improvement, transportation or integration) to acquire equipment, inventory or network assets (including leases on an indefeasible right-to-use basis and multiple investment units) (including acquisitions by guarantees way of Capitalized Lease and acquisitions of the Capital Stock of a Person that becomes a Restricted Subsidiary to the extent of the fair market value of the equipment, inventory or network assets so acquired) by the Company or the Company's a Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the IndentureSubsidiary;
(jviii) Indebtedness incurred of the Company or any Permanent Guarantor not to exceed, at any one time outstanding (after giving effect to any refinancing thereof), two times the sum of (A) the Net Cash Proceeds received by the Company after the Closing Date as a capital contribution or from the issuance and sale of its Capital Stock (other than Disqualified Stock) to a Person that is not a Subsidiary of the Company, to the extent (I) such capital contribution or Net Cash Proceeds have not been used pursuant to clause (C)(2) of the first paragraph or clause (iii), (iv), (vi) or (x) of the second paragraph of Section 4.04 to make a Restricted Payment and (II) if such capital contribution or Net Cash Proceeds are used to consummate a transaction pursuant to which the Company Incurs Acquired Indebtedness, the amount of such Net Cash Proceeds exceeds one-half of the amount of Acquired Indebtedness so Incurred and (B) 80% of the fair market value of property (other than cash and cash equivalents) received by the Company after the Closing Date as a capital contribution or from the sale of its Capital Stock (other than Disqualified Stock) to a Person that is not a Subsidiary of the Company, to the extent (I) such capital contribution or sale of Capital Stock has not been used pursuant to clause (iii), (iv) or (vii) of the second paragraph of Section 4.04 to make a Restricted Payment and (II) if such capital contribution or Capital Stock is used to consummate a transaction pursuant to which the Company Incurs Acquired Indebtedness, 80% of the fair market value of the property received exceeds one-half of the amount of Acquired Indebtedness so Incurred PROVIDED that such Indebtedness does not mature prior to the Stated Maturity of the Notes and has an Average Life longer than the Notes;
(ix) Acquired Indebtedness;
(x) Strategic Subordinated Indebtedness;
(xi) Indebtedness in respect of bankers' acceptance and letters of credit, all in the ordinary course of business, in an aggregate amount outstanding at any time not to exceed $10 million; and
(xii) subordinated Indebtedness of the Company or any Permanent Guarantor (in addition to Indebtedness permitted under clauses (i) through (xi) above) in an aggregate principal amount whichoutstanding at any time (after giving effect to any refinancing thereof) not to exceed $100 million.
(b) For purposes of determining compliance with any Dollar-denominated restriction on the Incurrence of Indebtedness denominated in another currency, together with all the Dollar-equivalent principal amount of such Indebtedness Incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was Incurred (or, in the case of Indebtedness under a revolving credit facility, at the time of commitment), PROVIDED that if such Indebtedness is Incurred to refinance other Indebtedness of denominated in a foreign currency, and such refinancing would cause the Company outstanding applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such incurrence which was incurred pursuant refinancing, such Dollar-denominated restriction shall be deemed not to this clause (J), have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed $55,000,000the principal amount of such Indebtedness being refinanced. With respect The principal amount of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different currency from the Indebtedness permitted being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing.
(c) For purposes of determining any particular amount of Indebtedness under this Section 3(d)(2)(J4.03, (1) no Guarantees, Liens or obligations with respect to letters of credit, bankers' acceptances or other similar instruments supporting Indebtedness otherwise included in the determination of such particular amount shall not be included and (2) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.09 of this Indenture shall not be treated as giving rise to Indebtedness. For purposes of determining compliance with this Section 4.03,
(1) any other obligation of the obligor on such Indebtedness arising under any Lien or letter of credit, bankers' acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that the same secures the principal amount of such Indebtedness and (2) in the event that an item of Indebtedness meets the criteria of more than $20,000,000 one of the types of Indebtedness described in the above clauses, the Company, in its sole discretion, shall classify, and from time to time may reclassify, such item of Indebtedness and only be incurred pursuant required to include the amount and type of such provision Indebtedness in respect one of Purchase Money Indebtednesssuch clauses (but may allocate portions of such Indebtedness between or among such clauses).
Appears in 1 contract
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, incur, directly or indirectly, Incur any Indebtedness unless(including Acquired Indebtedness); provided, however, that the Company and any of its Restricted Subsidiaries may Incur Indebtedness (including Acquired Indebtedness), if on the date of such incurrenceIncurrence and after giving pro forma effect thereto (including pro forma application of the proceeds thereof), either (i) the Consolidated Fixed Charge Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), for the Company and its Restricted Subsidiaries is no less than 2.00 to 1.00 or (ii) the Consolidated Total Leverage Ratio would have been no greater than 5.00 to 1.00; provided, further, that Non-Guarantor Subsidiaries may incur any or all not Incur Indebtedness under this Section 3.2(a) if, after giving pro forma effect to such Incurrence (including a pro forma application of the net proceeds therefrom), more than an aggregate of the greater of (a) $175 million and (b) 20.0% of LTM EBITDA of Indebtedness of Non-Guarantor Subsidiaries would be outstanding pursuant to this paragraph and clause (5) (other than subclause (c)) of the following Indebtedness:paragraph at such time.
(ab) Section 3.2(a) will not prohibit the Incurrence of the following Indebtedness (collectively, “Permitted Debt”):
(1) (X) Indebtedness incurred Incurred under any Credit Facility by the Company pursuant to the Credit Facility or any other revolving of its Restricted Subsidiaries (including letters of credit arrangement; providedor bankers’ acceptances issued or created under any Credit Facility) and Guarantees in respect of such Indebtedness, however, that, after giving effect up to any such incurrence, the an aggregate principal amount equal to the sum of such Indebtedness then outstanding does not exceed (I) $1,250 million, (II) the greater of $175,000,000 600 million and 100.0% of LTM EBITDA and (less III) the then outstanding principal maximum amount of Indebtedness arising that the Company and its Restricted Subsidiaries could incur, after all amounts have been incurred under clauses (I) and (II), such that (A) the Consolidated First Lien Secured Leverage Ratio is equal to or less than 2.75 to 1.00 on a pro forma basis (provided that, for purposes of determining the amount that may be Incurred under this clause (III)(A), all Indebtedness Incurred under this clause (III)(A) shall be deemed to be Secured Indebtedness with Liens on the Collateral that rank pari passu with the Liens securing the First Lien Obligations whether or not so secured for the purpose of the definition of Consolidated First Lien Secured Leverage Ratio), and (B) if such Indebtedness incurred has Junior Lien Priority relative to the Notes with respect to the Collateral or such Indebtedness is unsecured, the Consolidated Secured Leverage Ratio is equal to or less than 3.00 to 1.00 on a pro forma basis (provided that, for purposes of determining the amount that may be Incurred under this clause (III)(B), all Indebtedness Incurred under clause (III)(A) and this clause (III)(B) shall be deemed to be Secured Indebtedness for the purpose of the definition of Consolidated Secured Leverage Ratio) and (Y) in the case of any Receivables Program refinancing of any Indebtedness permitted under this clause or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including, without limitation, tender premiums) and other costs and expenses (including, without limitation, original issue discount, upfront fees or similar fees) Incurred in connection with such refinancing, and any Refinancing Indebtedness in respect thereof;
(2) Guarantees by the Company or any Restricted Subsidiary of Indebtedness or other obligations of the Company or any Restricted Subsidiary, Subsidiary so long as the Incurrence of such Indebtedness or other than Indebtedness described in clause (B) below) and obligations is not prohibited by the sum terms of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPthis Indenture;
(b3) Indebtedness of the Company owed owing to and held by a any Restricted Subsidiary and or Indebtedness of a Restricted Subsidiary owed owing to and held by the Company or a any Restricted Subsidiary; provided, however, that if a Guarantor incurs such Indebtedness owing to a Non-Guarantor Subsidiary, excluding any Indebtedness in respect of accounts payable incurred in connection with goods and services rendered in the ordinary course of business or consistent with past practice (and not in connection with the borrowing of money), such Indebtedness is expressly subordinated in right of payment (but only to the extent permitted by applicable law and to the extent such subordination does not result in material adverse tax consequences) to the Guarantee of the Notes of such Guarantor; provided, further, that any subsequent issuance or transfer (other than the incurrence of a Permitted Lien) of any Capital Stock which or any other event that results in any such Restricted Subsidiary to which such Indebtedness is owed ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such Indebtedness (other than except to the Company Issuer or another Restricted Subsidiary or any pledge of such Indebtedness constituting a Restricted SubsidiaryPermitted Lien (but not foreclosure thereon)) shall be deemed, in each case, to constitute the incurrence be an Incurrence of such Indebtedness not permitted by the issuer thereofthis clause (3);
(c4) Indebtedness represented by (a) the Securities;
Notes (dother than any Additional Notes), including any Guarantee thereof, (b) any Indebtedness outstanding as of the date of this Note (other than Indebtedness described in clause incurred pursuant to clauses (A1), (B2), (3) or and (C4)(a) of this Section 3(d)(23.2(b) but including the Existing Notes) outstanding on the Issue Date or, solely with respect to Indebtedness of Rotech, the Completion Date, and any Guarantee thereof, (c) Refinancing Indebtedness (including, with respect to the Notes and any Guarantee thereof) Incurred in respect of any Indebtedness described in this clause (4) or clause (5) of this Section 3.2(b) or Incurred pursuant to Section 3.2(a), and (d) Management Advances;
(5) Indebtedness of (x) the Company or any Restricted Subsidiary Incurred or issued to finance an acquisition or Investment or (y) Persons that are acquired by the Company or any Restricted Subsidiary or merged into, amalgamated or consolidated with the Company or a Restricted Subsidiary in accordance with the terms of this Indenture (including designating an Unrestricted Subsidiary as a Restricted Subsidiary); provided that after giving pro forma effect to such acquisition, merger, amalgamation or consolidation, either:
(a) the Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.2(a);
(eb) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of either the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness Fixed Charge Coverage Ratio of the Company and the Company's Restricted Subsidiaries would not be lower or the Consolidated Total Leverage Ratio of the Company and the Restricted Subsidiaries would not be higher, in each case, than immediately prior to such acquisition, merger, amalgamation or consolidation; or
(c) such Indebtedness constitutes Acquired Indebtedness (other than Indebtedness Incurred in contemplation of the extent the net proceeds thereof are concurrently deposited to defease all Securities transaction or series of related transactions pursuant to the terms of the Indenture which such Person became a Restricted Subsidiary or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees was otherwise acquired by the Company or a Restricted Subsidiary); provided that, in the Company's Restricted Subsidiaries 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 acquisition, merger, amalgamation or consolidation; provided, however, that on a pro forma basis, the amount of Indebtedness otherwise permitted to that may be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred Non-Guarantor Subsidiaries pursuant to this clause (J5) (other than pursuant to clause (c), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be together with amounts incurred and outstanding by Non-Guarantor Subsidiaries pursuant to such provision in respect the second proviso of Purchase Money Indebtedness.Section 3.2(a) shall not at any one time outstanding exceed the greater of (x) $175 million and (y) 20.0% of LTM EBITDA at the time of any incurrence pursuant to this clause (5);
Appears in 1 contract
Sources: Indenture (Owens & Minor Inc/Va/)
Limitation on Indebtedness. (1) The Company Borrower shall notnot create, incur, assume or suffer to exist any Indebtedness, and shall not permit any Restricted Subsidiary toof its Subsidiaries to create, incur, directly assume or indirectlysuffer to exist any Indebtedness, any Indebtedness unless, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur any or all of the following Indebtednessexcept for:
(a) Indebtedness incurred by created hereunder and under the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) Notes and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPLoan Documents;
(b) Indebtedness (i) evidenced by performance bonds issued in the ordinary course of the Company owed to and held business or reimbursement obligations in respect thereof, (ii) evidenced by a Restricted Subsidiary and Indebtedness letter of a Restricted Subsidiary owed credit facility related to and held by insurance associated with claims for work-related injuries or (iii) for bank overdrafts incurred in the Company or a Restricted Subsidiary; provided, however, ordinary course of business that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemedare promptly repaid, in each casean aggregate amount (under clauses (i), (ii) and (iii)) not to constitute the incurrence of such Indebtedness by the issuer thereofexceed $100,000 at any one time outstanding;
(c) the SecuritiesIndebtedness secured by Liens permitted by Section 6.3(g);
(d) Indebtedness outstanding as of Capitalized Lease Obligations in an aggregate principal amount not exceeding the date of this Note following amounts for the periods indicated: (other i) from the Closing Date to and including December 31, 2002, not more than Indebtedness described in clause (A)$844,000 outstanding, (Bii) or from January 1, 2003 to and including December 31, 2003, not more than $1,381,000 outstanding and (Ciii) of this Section 3(d)(2))thereafter, not more than $1,696,000 outstanding;
(e) Refinancing Indebtedness of Wholly Owned Subsidiaries of the Borrower to the Borrower or to other Wholly Owned Subsidiaries of the Borrower; and
(f) Guarantee Obligations of the Borrower incurred in the ordinary course of business in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of any Subsidiary; provided that such Indebtedness is otherwise permitted by this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness6.2.
Appears in 1 contract
Sources: Credit Agreement (Point 360)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; PROVIDED, HOWEVER, that the Company and the Subsidiary Guarantors shall be entitled to Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto on a PRO FORMA basis, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2b) Notwithstanding the foregoing paragraph (1a), the Company and its the Restricted Subsidiaries may incur shall be entitled to Incur any or all of the following Indebtedness:
(a1) Indebtedness incurred Incurred by the Company or any Subsidiary Guarantor pursuant to the Credit Facility or any other revolving credit arrangementAgreement; providedPROVIDED, howeverHOWEVER, that, after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such all Indebtedness Incurred under this clause (b)(1) and then outstanding does not exceed the greater of (A) $175,000,000 (25.0 million less the then outstanding sum of all principal amount of payments with respect to such Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause pursuant to Section 4.06(a)(3)(A) and (B) below) and the sum of (i) 5090% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 8590% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPSubsidiaries;
(b2) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Wholly Owned Subsidiary; providedPROVIDED, howeverHOWEVER, that (A) any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Wholly Owned Subsidiary ceasing to be a Restricted Wholly Owned Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Wholly Owned Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereofobligor thereon, (B) if the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Securities, and (C) if a Subsidiary Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations of such obligor with respect to its Subsidiary Guaranty;
(c3) the Securities (other than any Additional Securities);
(d4) Indebtedness outstanding as of on the date of this Note Issue Date (other than Indebtedness described in clause (A1), (B2) or (C3) of this Section 3(d)(24.03(b));
(e5) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Subsidiary was acquired by the Company (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by the Company); PROVIDED, HOWEVER, that on the date of such acquisition and after giving PRO FORMA effect thereto, the Company would have been able to Incur at least $1.00 of additional Indebtedness pursuant to Section 4.03(a);
(6) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(14.03(a) or pursuant to clause (C3), (4) or (D5) of this Section 3(d)(24.03(b) or this clause (E6); PROVIDED, HOWEVER, that to the extent such Refinancing Indebtedness directly or indirectly Refinances Indebtedness of a Subsidiary Incurred pursuant to clause (5), such Refinancing Indebtedness shall be Incurred only by such Subsidiary;
(f7) Hedging Obligations consisting of (A) Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunderIncurred by the Company and its Restricted Subsidiaries pursuant to this Indenture, (B) Currency Agreements entered into in the ordinary course of business for the purpose of mitigating the risk to the Company or its Subsidiaries of currency fluctuations and not for speculative purposes and (C) Commodity Price Protection Agreements entered into in the ordinary course of business for the purpose of mitigating the risk to the Company or its Subsidiaries of commodity price fluctuations and not for speculative purposes;
(g) Indebtedness incurred 8) Obligations in respect of performance, bid and surety bonds and completion guarantees provided by a Receivables Subsidiary, other than Indebtedness described the Company or any Restricted Subsidiary in clause (B) above, in an amount not exceeding 95% the ordinary course of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Programbusiness;
(h9) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; PROVIDED, HOWEVER, that such Indebtedness is extinguished within two Business Days of its Incurrence;
(10) Indebtedness consisting of the Company Subsidiary Guaranty of a Subsidiary Guarantor and the Company's Restricted Subsidiaries any Guarantee by a Subsidiary Guarantor of Indebtedness Incurred pursuant to paragraph (a) or pursuant to clause (1), (2,), (3), (4) or (11) or pursuant to clause (6) to the extent the net proceeds thereof are concurrently deposited to defease all Securities Refinancing Indebtedness Incurred thereunder directly or indirectly Refinances Indebtedness Incurred pursuant to the terms of the Indenture paragraph (a) or all New Notes pursuant to the terms hereinclause (3) or (4);
(i11) Indebtedness represented by guarantees (including Capital Lease Obligations and Attributable Debt in respect of Sale/Leaseback Transactions) Incurred by the Company or the Company's any of its Restricted Subsidiaries to finance the purchase, lease, construction or improvement of equipment in the ordinary course of business (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets) within 90 days of such purchase, lease, construction or improvement, and any Refinancing Indebtedness otherwise permitted Incurred to be incurred under the Indenture;
(j) Indebtedness incurred by the Company Refinance such Indebtedness, in an aggregate principal amount which, when taken together with all other Indebtedness Incurred pursuant to this clause (11) and outstanding on the date of such Incurrence, does not exceed $10.0 million;
(12) Indebtedness Incurred by a Foreign Subsidiary solely for the working capital and other financing purposes of such Foreign Subsidiary in an aggregate principal amount which, when taken together with all other Indebtedness of Foreign Subsidiaries Incurred pursuant to this clause (12) and outstanding on the date of such Incurrence, does not exceed $2.0 million; and
(13) Indebtedness of the Company or any Subsidiary Guarantor in an aggregate principal amount which, when taken together with all other Indebtedness of the Company and the Subsidiary Guarantors outstanding on the date of such incurrence which was incurred pursuant to Incurrence (other than Indebtedness permitted by clauses (1) through (12) of this clause (JSection 4.03(b) or Section 4.03(a)), does not exceed $55,000,000. With respect 10.0 million.
(c) Notwithstanding the foregoing, neither the Company nor any Subsidiary Guarantor shall Incur any Indebtedness pursuant to Section 4.03(b) if the proceeds thereof are used, directly or indirectly, to Refinance any Subordinated Obligations of the Company or any Subsidiary Guarantor unless such Indebtedness permitted under shall be subordinated to the Securities or the applicable Subsidiary Guaranty to at least the same extent as such Subordinated Obligations.
(d) For purposes of determining compliance with this Section 3(d)(2)(J4.03, (1) no any Indebtedness Incurred under the Credit Agreement on the Issue Date will be treated as Incurred under clause (1) of paragraph (b) above, (2) in the event that an item of Indebtedness (or any portion thereof) meets the criteria of more than $20,000,000 one of the types of Indebtedness may described in this Section, the Company, in its sole discretion, shall classify such item of Indebtedness (or any portion thereof) at the time of Incurrence and shall only be incurred pursuant required to include the amount and type of such provision Indebtedness in respect one of Purchase Money Indebtednessthe above clauses and (3) the Company shall be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described in this Section.
Appears in 1 contract
Sources: Indenture (PrimeWood, Inc.)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness unless, on the date of such incurrenceIncurrence, after giving pro forma effect thereto, the Consolidated EBITDA Coverage Ratio at the date of such issuance exceeds 2.0 to 11.0 if such Indebtedness is Incurred prior to May 15, 1999 and 2.25 to 1 if such Indebtedness is Incurred thereafter.
(2b) Notwithstanding the foregoing paragraph clause (1a), the Company and its Restricted Subsidiaries may incur any or all of Incur the following Indebtedness:
: (ai) Indebtedness incurred by the Company Incurred pursuant to the Revolving Credit Facility or any other revolving credit arrangementFacility; provided, however, that, that after giving pro forma effect to any such incurrence, Incurrence and the application of the net proceeds therefrom the aggregate principal amount of such Indebtedness outstanding at such time, together with the aggregate amount of all Indebtedness then outstanding does and Incurred pursuant to clause (i) of Section 4.18 below shall not exceed the greater of (x) $175,000,000 25 million and (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (By) below) and the sum of (iA) 50% of the gross book value of the inventory of the Company and its Restricted Subsidiaries and (iiB) 85% of the gross book value of the accounts receivable of the Company and its Restricted Subsidiaries Subsidiaries; (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
(bii) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company Wholly Owned or a Restricted Foreign Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which that results in any such Restricted Subsidiary ceasing to be a Restricted Wholly Owned or Foreign Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company a Wholly Owned or a Restricted Foreign Subsidiary) shall be deemed, in each case, to constitute the incurrence issuance of such Indebtedness by the issuer thereof;
Company; (ciii) the Securities;
Notes and the Exchange Notes; (div) Indebtedness outstanding as of the date of this Note (other than Indebtedness described in clause (Ai), (B) ii), or (Ciii) of this Section 3(d)(2));
above) outstanding on Issue Date; (ev) any Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(1paragraph (a) or pursuant to clause (Ciii), (iv) or (D) of this Section 3(d)(2viii) or this clause (E);
v) or pursuant to clause (fv) Hedging Obligations consisting of Interest Rate Section 4.18 below; (vi) obligations of the Company pursuant to (A) interest rate swap or Currency Protection Agreements directly related similar agreements designed to protect the Company against fluctuations in interest rates in respect of Indebtedness permitted of the Company to be incurred hereunder;
(g) the extent the notional principal amount of such obligation does not exceed the aggregate principal amount of the Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause to which such interest rate contracts relate and (B) aboveforeign exchange or commodity hedge, exchange or similar agreements designed to protect the Company against fluctuations in an amount not exceeding 95% foreign currency exchange rates or commodity prices in respect of foreign exchange or commodity exposures Incurred by the aggregate unpaid balance Company in the ordinary course of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
its business; (hvii) Indebtedness of the Company and consisting of obligations in respect of purchase price adjustments in connection with the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms acquisition or disposition of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees assets by the Company or any Restricted Subsidiary permitted under this Indenture; (viii) Capital Lease Obligations, Purchase Money Indebtedness and Acquired Indebtedness in an aggregate principal amount, together with the Company's Restricted Subsidiaries principal amount of Indebtedness otherwise permitted Incurred pursuant to be incurred under the Indenture;
clause (jx) of Section 4.18, not exceeding $15 million at any one given time outstanding; and (ix) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company then outstanding on the date (other than Indebtedness permitted by clauses (i) through (viii) of such incurrence which was incurred pursuant to this Section or clause (Ja), ) does not exceed $55,000,000. With respect 10 million (less the amount of any Subsidiary Indebtedness and Preferred Stock then outstanding and Incurred pursuant to clause (vii) of Section 4.18).
(c) Notwithstanding Sections (a) and (b) above, and the provisions of Section 4.18, the Company shall not, and shall not permit any Restricted Subsidiary to issue any Indebtedness permitted under if the proceeds thereof are used, directly or indirectly, to repay, prepay, redeem, defease, retire, refund or refinance any Subordinated Obligations unless such Indebtedness shall be subordinated to the Notes or the relevant Subsidiary Guarantee, as applicable, to at least the same extent as such Subordinated Obligations.
(d) For purposes of determining compliance with this Section 3(d)(2)(J4.13, (i) no in the event that an item of Indebtedness meets the criteria of more than $20,000,000 one of the types of Indebtedness described above, the Company, in its sole discretion, will classify such item of Indebtedness and only be required to include the amount and type of such Indebtedness in one of the above clauses and (ii) an item of Indebtedness may be incurred pursuant divided and classified in more than one of the types of Indebtedness described above.
(e) For purposes of determining amounts of Indebtedness under this covenant, Indebtedness resulting from security interests granted with respect to such provision Indebtedness otherwise included in the determination of Indebtedness, and Guarantees (and security interests with respect thereof) of, or obligations with respect to letters of Purchase Money credit supporting, Indebtedness otherwise included in the determination of Indebtedness shall not be included in the determination of Indebtedness.
Appears in 1 contract
Limitation on Indebtedness. (1a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, incur, directly or indirectly, any Indebtedness unless, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur to, Incur any or all of Indebtedness (other than the following Indebtedness:
(a) Notes, the Note Guarantees and other Indebtedness incurred by existing on the Closing Date); provided that the Company pursuant to the Credit Facility or any other revolving credit arrangement; providedSubsidiary Guarantor may Incur Indebtedness, howeverand any Restricted Subsidiary may Incur Acquired Indebtedness, thatif, after giving effect to any such incurrence, the aggregate principal amount Incurrence of such Indebtedness then outstanding does not exceed and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio would be greater than 2.25:1. Notwithstanding the foregoing, the Company and any Restricted Subsidiary (except as specified below) may Incur each and all of $175,000,000 the following:
(less the then outstanding principal amount of i) Indebtedness arising under any Receivables Program of the Company or any Restricted SubsidiarySubsidiary Guarantor outstanding at any time under the Credit Agreement in an aggregate principal amount (together with refinancings thereof) not to exceed the greater of (a) $350 million, other than less any amount of such Indebtedness described in clause permanently repaid as provided under Section 4.11 or (Bb) below) and the sum of the amounts equal to (ix) 5060% of the consolidated book value of the inventory of the Company and its Restricted Subsidiaries the Subsidiary Guarantors and (iiy) 85% of the consolidated book value of the accounts receivable of the Company and its Restricted Subsidiaries the Subsidiary Guarantors, in each case as of the most recently ended fiscal quarter of the Company for which reports have been filed with the Commission or provided to the Trustee;
(other than accounts receivable subject ii) Indebtedness owed (A) to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
Subsidiary Guarantor evidenced by an unsubordinated promissory note or (bB) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a any other Restricted Subsidiary; provided, however, provided that (x) any subsequent issuance or transfer of any Capital Stock event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence an Incurrence of such Indebtedness not permitted by this clause (ii) and (y) if the issuer thereofCompany or any Subsidiary Guarantor is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated in right of payment to the Notes, in the case of the Company or the Note Guarantee, in the case of a Subsidiary Guarantor;
(ciii) Indebtedness issued in exchange for, or the Securities;net proceeds of which are used to refinance or refund, then outstanding Indebtedness (other than Indebtedness outstanding under clause (ii) or (v)) and any refinancings thereof in an amount not to exceed the amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses); provided that
(da) Indebtedness outstanding the proceeds of which are used to refinance or refund the Notes or Indebtedness that is pari passu with, or subordinated in right of payment to, the Notes or a Note Guarantee shall only be permitted under this clause (iii) if (x) in case the Notes are refinanced in part or the Indebtedness to be refinanced is pari passu with the Notes or a Note Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made pari passu with, or subordinate in right of payment to, the remaining Notes or the Note Guarantee, or (y) in case the Indebtedness to be refinanced is subordinated in right of payment to the Notes or a Note Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes or the Note Guarantee at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes or the Note Guarantee, (b) such new Indebtedness, determined as of the date of this Note Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded and (other than c) such new Indebtedness described in clause (A), (B) is Incurred by the Company or (C) of this Section 3(d)(2))a Subsidiary Guarantor or by the Restricted Subsidiary who is the obligor on the Indebtedness to be refinanced or refunded;
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(hiv) Indebtedness of the Company and the Company's Restricted Subsidiaries , to the extent the net proceeds thereof are concurrently promptly (A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change of Control or (B) deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms hereinas described under Section 8.02 and Section 8.03;
(iv) Guarantees of the Notes and Guarantees of Indebtedness represented by guarantees by of the Company or any Subsidiary Guarantor by any Restricted Subsidiary provided the Company's Restricted Subsidiaries Guarantee of such Indebtedness otherwise is permitted to be incurred under the Indentureby and made in accordance with Section 4.07;
(jvi) Indebtedness incurred by of the Company related to the Whitley County Mini-Mill in an aggregate principal amoun▇ ▇▇▇▇▇anding at any time not to exceed $20 million;
(vii) Indebtedness of the Company or any Subsidiary Guarantor Incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or any Subsidiary Guarantor, in an aggregate principal amount which, outstanding at any time (together with all other refinancings thereof) not to exceed $20 million; or
(viii) Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause or any Restricted Subsidiary (J), does not exceed $55,000,000. With respect in addition to Indebtedness permitted under clauses (i) through (vii) above) in an aggregate principal amount outstanding at any time (together with refinancings thereof) not to exceed $25 million, less any amount of such Indebtedness permanently repaid as provided under Section 4.11.
(b) Notwithstanding any other provision of this Section 3(d)(2)(J4.03, the maximum amount of Indebtedness that may be Incurred pursuant to this Section 4.03 shall not be deemed to be exceeded, with respect to any outstanding Indebtedness, due solely to the result of fluctuations in the exchange rates of currencies.
(c) no For purposes of determining any particular amount of Indebtedness under this Section 4.03, (x) Indebtedness Incurred under the Credit Agreement on or prior to the Closing Date shall be treated as Incurred pursuant to clause (i) of the second paragraph of clause (a) of this Section 4.03, (y) 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 and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.09 shall not be treated as Indebtedness. For purposes of determining compliance with this Section 4.03, in the event that an item of Indebtedness meets the criteria of more than $20,000,000 one of the types of Indebtedness described above (other than Indebtedness referred to in clause (x) of the preceding sentence), including under the first paragraph of part (a), the Company, in its sole discretion, shall classify, and from time to time may be incurred pursuant to reclassify, such provision in respect item of Purchase Money Indebtedness.
(d) The Company will not and will not permit any Subsidiary Guarantor to Incur any Indebtedness if such Indebtedness is subordinate in right of payment to any other Indebtedness unless such Indebtedness is also subordinate in right of payment to the Notes, in the case of Steel Dynamics, or the Note Guarantee, in the case of a Subsidiary Guarantor, to the same extent.
Appears in 1 contract
Sources: Indenture (Steel Dynamics Inc)
Limitation on Indebtedness. (1) The Company Holdings shall not, and shall not permit any Restricted Subsidiary to, incurIncur any Indebtedness; provided, directly however, that Holdings or indirectly, any Restricted Subsidiary may Incur Indebtedness unless, if on the date of such incurrence, Incurrence and after giving effect thereto the Consolidated Coverage Debt to EBITDA Ratio exceeds 2.0 to 1would be less than 7.25:1.
(2) Notwithstanding the foregoing paragraph (1), the Company Holdings and its Restricted Subsidiaries may incur any or all of Incur the following Indebtedness:
(a) Bank Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the in an aggregate principal amount of such Indebtedness then outstanding does not to exceed the greater of $175,000,000 (585,000,000 less the then outstanding principal aggregate amount of Indebtedness arising under all prepayments of principal applied to permanently reduce any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPsuch Indebtedness;
(b) Indebtedness of the Company owed to and held by a Restricted any Wholly Owned Subsidiary and or Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted any Wholly Owned Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which or any other event that results in any such Restricted Wholly Owned Subsidiary ceasing to be a Restricted Wholly Owned Subsidiary or any subsequent transfer of any such Indebtedness (other than except to the Company or a Restricted Wholly Owned Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereof;
(c) Indebtedness (i) represented by the Securities, (ii) represented by the Notes and the Guarantees, (iii) outstanding on the Closing Date (other than the Indebtedness described in clauses (a) and (b) above), (iv) consisting of Refinancing Indebtedness or Company Refinancing Indebtedness Incurred in respect of any Indebtedness described in this clause (c) (including Indebtedness Refinancing Indebtedness) or Section 4.03(1) or (v) consisting of guarantees of any Indebtedness permitted under clauses (a) and (b) of this paragraph (2);
(di) Indebtedness of a Restricted Subsidiary Incurred and outstanding as of on or prior to the date of this Note on which such Restricted Subsidiary was acquired by Holdings (other than Indebtedness described in Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Subsidiary of, or was otherwise acquired by, Holdings); provided, however, that on the date that such Restricted Subsidiary is acquired by Holdings, Holdings would have been able to Incur $1.00 of additional Indebtedness pursuant to Section 4.03(1) after giving effect to the Incurrence of such Indebtedness pursuant to this clause (A), d) and (Bii) Refinancing Indebtedness Incurred by the Company or a Restricted Subsidiary in respect of Indebtedness Incurred pursuant to this clause (C) of this Section 3(d)(2)d);
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) performance bonds, bankers' acceptances, letters of credit and surety or pursuant to clause (C) or (D) appeal bonds provided by Holdings and the Restricted Subsidiaries in the ordinary course of this Section 3(d)(2) or this clause (E)their business;
(f) Purchase Money Indebtedness and Capitalized Lease Obligations (in an aggregate principal amount not in excess of $20,000,000 at any time outstanding);
(g) Hedging Obligations consisting of Interest Rate Holdings or Currency Protection Agreements any Restricted Subsidiary directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred Incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Holdings or any Restricted Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms Indenture for the purpose of the Indenture fixing or all New Notes pursuant to the terms hereinhedging interest rate risk or currency fluctuations;
(i) Indebtedness represented of another Person Incurred and outstanding on or prior to the date on which such Person consolidates with or merges with or into Holdings or the Company (other than Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Person consolidates with or merges with or into Holdings or the Company); provided, however, that on the date that such transaction is consummated, Holdings would have been able to Incur $1.00 of additional Indebtedness pursuant to Section 4.03(1) after giving effect to the Incurrence of such Indebtedness pursuant to this clause (h) and (ii) Refinancing Indebtedness Incurred by guarantees by Holdings or the Company or the Company's Restricted Subsidiaries Successor Company in respect of Indebtedness otherwise Incurred pursuant to subclause (i) of this clause (h); or
(i) Indebtedness (other than Indebtedness permitted to be incurred under the Indenture;
(jIncurred pursuant to Section 4.03(1) Indebtedness incurred by the Company or any other clause of this Section 4.03(2)) in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred Incurrence that, when added to all other Indebtedness Incurred pursuant to this clause (J)i) and then outstanding, does shall not exceed $55,000,0005,000,000.
(3) Notwithstanding the foregoing, Holdings shall not Incur any Indebtedness pursuant to Section 4.03(2) above if the proceeds thereof are used, directly or indirectly, to repay, prepay, redeem, defease, retire, refund or refinance any Subordinated Obligations, unless such Indebtedness shall be subordinated to the Securities to at least the same extent as such Subordinated Obligations. With respect In addition, Holdings shall not Incur any Secured Indebtedness that is not Pari Passu Indebtedness, unless, contemporaneously therewith, effective provision is made to secure the Securities equally and ratably with (or on a senior basis to, in the case of Indebtedness subordinated in right of payment to the Securities) such Secured Indebtedness for so long as such Secured Indebtedness is secured by a Lien.
(4) Notwithstanding any other provision of this Section 4.03, the maximum amount of Indebtedness that Holdings or any Restricted Subsidiary may Incur pursuant to this Section 4.03 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rates of currencies. For purposes of determining the outstanding principal amount of any particular Indebtedness Incurred pursuant to this Section 4.03:
(a) Indebtedness Incurred pursuant to the Credit Agreement prior to or on the Closing Date shall be treated as Incurred pursuant to Section 4.03(2)(a);
(b) Indebtedness permitted under by this Section 3(d)(2)(J4.03 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 Section 4.03 permitting such Indebtedness; and
(c) no in the event that Indebtedness meets the criteria of more than $20,000,000 one of the types of Indebtedness may described in this Section 4.03, Holdings, in its sole discretion, shall classify such Indebtedness and only be incurred pursuant required to include the amount of such provision Indebtedness in respect one of Purchase Money Indebtednesssuch clauses.
Appears in 1 contract
Limitation on Indebtedness. (1a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company or any Restricted Subsidiary may Incur Indebtedness unless, if on the date of such incurrence, Incurrence and after giving effect thereto and the application of the proceeds therefrom the Consolidated Interest Coverage Ratio exceeds 2.0 would be greater than 2.0:1.0; provided that the maximum aggregate principal amount of Indebtedness outstanding at any time and incurred by Restricted Subsidiaries that are not the Issuer or a Guarantor pursuant to 1this clause (a) (when aggregated with the aggregate principal amount of Indebtedness of Restricted Subsidiaries that are not the Issuer or a Guarantor incurred in respect thereof pursuant to clause (b)(3) below and then outstanding) shall not exceed $350.0 million.
(2b) Notwithstanding the foregoing paragraph (1a), the Company and its Restricted Subsidiaries may incur any or all of Incur the following Indebtedness:
(a1) Indebtedness incurred by the Company pursuant to the under Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the Facilities in an aggregate principal amount of such Indebtedness then outstanding does not to exceed the greater of (A) $175,000,000 (2,750.0 million, less the then outstanding principal aggregate amount of all prepayments of principal applied to permanently reduce any such Indebtedness arising under any Receivables Program in satisfaction of the Company or any Restricted SubsidiaryCompany’s obligations under Section 4.08, other than Indebtedness described in clause (B) below) and the sum of (i) 5060% of the book value of the inventory of the Company and its Restricted Subsidiaries and plus (ii) 8580% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than any accounts receivable subject to any Receivables Program of pledged, sold or otherwise transferred or encumbered by the Company or any Restricted SubsidiarySubsidiary in connection with a Qualified Receivables Transaction), in each case, as of the end of the most recent fiscal quarter for which financial statements are available (but calculated on a pro forma basis for any acquisition or disposition of a Person or business occurring after such date and on or prior to the date of determination) and (C) solely in the case determined in accordance with GAAPof Secured Indebtedness of the Company or a Guarantor that is not Guaranteed by any Restricted Subsidiary that is not the Issuer or a Guarantor, an amount such that, after giving pro forma effect thereto and the application of the proceeds therefrom, the Total Secured Leverage Ratio does not exceed 2.0:1.0;
(b2) Indebtedness of the Company owed to and held by a any Restricted Subsidiary and or Indebtedness of a Restricted Subsidiary owed to and held by the Company or a any Restricted Subsidiary; provided, however, that (i) any Indebtedness owed by the Issuer or any Guarantor to any Restricted Subsidiary that is not the Issuer or a Guarantor shall be subordinated in right of payment to the Notes or the Note Guarantees, as applicable and (ii) any subsequent issuance or transfer of any Capital Stock which event that results in any such Restricted Subsidiary to which any such Indebtedness is owed ceasing to be a Restricted Subsidiary or any subsequent transfer of any such Indebtedness (other than except to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereofthereof not permitted by this clause (2);
(c3) Indebtedness (A) represented by the SecuritiesNotes (not including any Additional Notes) and the Note Guarantees and any Exchange Notes and related Guarantees issued in exchange for such Notes and Note Guarantees pursuant to the Registration Rights Agreement, (B) outstanding on the Issue Date (other than the Indebtedness described in clauses (1) (under the Credit Agreement), (2) and (3)(A) above) and (C) consisting of Refinancing Indebtedness Incurred in respect of any Indebtedness described in this clause (3) (including Indebtedness that is Refinancing Indebtedness) or the foregoing paragraph (a);
(d4) (A) Indebtedness of a Restricted Subsidiary Incurred and outstanding as of on or prior to the date of this Note on which such Restricted Subsidiary was acquired by the Company or a Restricted Subsidiary (other than Indebtedness described Incurred in contemplation of, in connection with, as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Subsidiary of or was otherwise acquired by the Company); provided, however, that on the date that such Restricted Subsidiary is acquired by the Company, (i) the Company would have been able to Incur $1.00 of additional Indebtedness pursuant to the foregoing paragraph (a) after giving effect to the Incurrence of such Indebtedness pursuant to this clause (4) or (ii) the Consolidated Interest Coverage Ratio immediately after giving effect to such Incurrence and acquisition would be equal to or greater than such ratio immediately prior to such transaction and (B) Refinancing Indebtedness Incurred by a Restricted Subsidiary in respect of Indebtedness Incurred by such Restricted Subsidiary pursuant to this clause (4);
(5) Indebtedness in respect of (A)) workers compensation claims, health disability or other employee benefits or property, casualty or liability insurance or self-insurance in the ordinary course of business, (B) bid, performance surety, stay, customs, appeal or replevin bonds, bankers’ acceptances, letters of credit, bank guarantees and performance and completion guarantees, or similar obligations entered into by the Company or any Restricted Subsidiary in the ordinary course of business, (C) judgments, decrees, attachments or awards that do not constitute an Event of Default and (D) Hedging Obligations not entered into for speculative purposes;
(6) Purchase Money Indebtedness and Capitalized Lease Obligations and Refinancing Indebtedness in respect thereof in an aggregate principal amount on the date of Incurrence that, when added to all other Indebtedness Incurred pursuant to this clause (6) and then outstanding, will not exceed the greater of (A) $500.0 million and (B) 5.0% of Consolidated Total Assets at the time such Indebtedness is Incurred;
(7) Indebtedness Incurred by a Receivables Entity in a Qualified Receivables Transaction;
(8) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of a Financial Officer’s becoming aware of its Incurrence;
(9) any Guarantee by the Company or a Restricted Subsidiary of Indebtedness or other obligations of the Company or any of its Restricted Subsidiaries so long as the Incurrence of such Indebtedness or other obligations by the Company or such Restricted Subsidiary is permitted under the terms of this Section 3(d)(2)Indenture;
(10) (A) Indebtedness of the Company or a Restricted Subsidiary in an amount not to exceed $100.0 million Incurred in contemplation of, in connection with, as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Subsidiary of or was otherwise acquired by the Company whether by means of the acquisition of assets or the Capital Stock of such entity; provided, however, that on the date that such Restricted Subsidiary is acquired by the Company, (i) the Company would have been able to Incur $1.00 of additional Indebtedness pursuant to the foregoing paragraph (a) after giving effect to the Incurrence of such Indebtedness pursuant to this clause (10) or (ii) the Consolidated Interest Coverage Ratio immediately after giving effect to such Incurrence and acquisition would be equal to or greater than such ratio immediately prior to such transaction and (B) Refinancing Indebtedness Incurred in respect of Indebtedness Incurred pursuant to this clause (10);
(e11) Refinancing Indebtedness of a Foreign Subsidiary (x) to finance working capital and other cash management needs and (y) in respect an aggregate principal amount outstanding at any time and incurred under this subclause (y) not to exceed the greater of (A) $350.0 million and (B) 5.0% of Consolidated Total Assets at the time such Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E)is Incurred;
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h12) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount whichon the date of Incurrence that, together with when added to all other Indebtedness Incurred pursuant to this clause (12) and then outstanding, will not exceed the greater of (A) $675.0 million and (B) 7.5% of Consolidated Total Assets at the time such Indebtedness is Incurred;
(13) Indebtedness consisting of bona fide purchase price adjustments, earnouts, indemnification obligations, obligations under deferred compensation or similar arrangements and similar items in connection with acquisitions and asset dispositions otherwise permitted by this Indenture;
(14) Indebtedness (A) in the form of (x) guarantees of loans and advances to officers, directors, consultants and employees, in an aggregate amount not to exceed $10.0 million at any one time outstanding; and (y) reimbursements owed to officers, directors, consultants and employees and (B) consisting of obligations to make payments to current or former officers, directors and employees, their respective estates, spouses or former spouses with respect to the cancellation, or to finance the purchase or redemption, of Capital Stock of the Company (or any direct or indirect parent thereof); and
(15) Indebtedness consisting of (A) the financing of insurance premiums with the providers of such insurance or their affiliates and (B) take-or-pay obligations contained in supply arrangements in the ordinary course of business.
(c) For purposes of determining the outstanding principal amount of any particular Indebtedness Incurred pursuant to this Section 4.07:
(1) Outstanding Indebtedness under the Credit Agreement on the Issue Date shall be deemed to have been Incurred pursuant to clause (1) of paragraph (b) of this Section 4.07;
(2) Indebtedness permitted by this Section 4.07 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 Section 4.07 permitting such Indebtedness;
(3) in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in this Section 4.07, the Company, in its sole discretion, shall classify such Indebtedness (or any portion thereof) as of the time of Incurrence and will only be required to include the amount of such Indebtedness in one of such clauses (provided that any Indebtedness originally classified as Incurred pursuant to clauses (b)(2) through (b)(15) of this Section 4.07 may later be reclassified as having been Incurred pursuant to paragraph (a) or any other of clauses (b)(2) through (b)(15) of this Section 4.07 to the extent that such reclassified Indebtedness could be Incurred pursuant to paragraph (a) or one of clauses (b)(2) through (b)(15) of this Section 4.07, as the case may be, if it were Incurred at the time of such reclassification); and
(4) Guarantees or Liens in respect of, or obligations in respect of letters of credit relating to, Indebtedness which is otherwise included in the determination of a particular amount of Indebtedness shall not be included in the determination of such amount of Indebtedness; provided that the Incurrence of the Indebtedness supported by such Guarantee, Lien or letter of credit, as the case may be, was in compliance with this Section 4.07.
(d) For purposes of determining compliance with any U.S. dollar denominated restriction on the Incurrence of Indebtedness where the Indebtedness Incurred is denominated in a different currency, the amount of such Indebtedness will be the U.S. Dollar Equivalent determined on the date of the Incurrence of such Indebtedness; provided, however, that (i) if any such Indebtedness denominated in a different currency is subject to a Currency Agreement with respect to U.S. dollars covering all principal, premium, if any, and interest payable on such Indebtedness, the amount of such Indebtedness expressed in U.S. dollars will be as provided in such Currency Agreement and (ii) if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such incurrence which was incurred pursuant refinancing, such U.S. dollar-denominated restriction shall be deemed not to this clause (J), have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed $55,000,000the principal amount of such Indebtedness being refinanced. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 Notwithstanding the foregoing, the maximum amount of Indebtedness that may be incurred pursuant to such provision this Section 4.07 shall not be deemed to be exceeded with respect to any outstanding Indebtedness due solely to the fluctuations in respect the exchange rates of Purchase Money Indebtednesscurrencies.
Appears in 1 contract
Limitation on Indebtedness. (1a) The Company shall will not, -------------------------- and shall will not permit any of its Restricted Subsidiary Subsidiaries to, incur, directly or indirectly, Incur any Indebtedness unless, (other than the Notes and Indebtedness existing on the date Closing Date); provided that the Company or any Subsidiary Guarantor may Incur Indebtedness if, after giving effect to the Incurrence of such incurrenceIndebtedness and the receipt and application of the proceeds therefrom, the Consolidated Coverage Leverage Ratio exceeds 2.0 to 1.
(2) would be greater than zero and less than 6:1. Notwithstanding the foregoing paragraph (1)foregoing, the Company and its Restricted Subsidiaries (except as specified below) may incur any or Incur each and all of the following Indebtednessfollowing:
(ai) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described Subsidiary Guarantor outstanding at any time in clause (B) below) and an aggregate principal amount not to exceed the sum greater of (ia) 50$50 million less any amount of such Indebtedness permanently paid as provided under Section 3.10; and (b) 85% of the book value of the inventory consolidated revenues of the Company and its Restricted Subsidiaries and for the most recently ended fiscal quarter for which financial information is available; provided that revenues of Foreign Subsidiaries shall be excluded to the extent used to Incur Indebtedness under clause (xi) below;
(ii) 85% of the book value of the accounts receivable of Indebtedness owed (A) to the Company and its Restricted Subsidiaries evidenced by a promissory note or (other than accounts receivable subject B) to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
(b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, provided that any subsequent issuance or transfer of any Capital Stock event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence an Incurrence of such Indebtedness not permitted by the issuer thereofthis clause (ii);
(c) the Securities;
(diii) Indebtedness issued in exchange for, or the net proceeds of which are used to refinance or refund, then outstanding Indebtedness (other than Indebtedness Incurred under clause (i), (ii), (iv), (vi), (viii), (xi) or (xii) of this paragraph of this Section 3.03, it being understood Indebtedness Incurred under any of such clauses may be refinanced under such clauses) and any refinancings thereof in an amount not to exceed the amount so refinanced or refunded (plus premiums, accrued interest, any fees, costs, expenses, underwriting discounts or commissions paid or payable with respect to the Indebtedness Incurred pursuant to this clause (iii)); provided that (a) Indebtedness the proceeds of which are used to refinance or refund the Notes or Indebtedness that is pari passu with, or subordinated in right of payment to, the Notes or any Subsidiary Guarantee shall only be permitted under this clause (iii) if (x) in case the Notes are refinanced in part or the Indebtedness to be refinanced is pari passu with the Notes, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made pari passu with, or subordinate in right of payment to, the remaining Notes or the Subsidiary Guarantee, or (y) in case the Indebtedness to be refinanced is subordinated in right of payment to the Notes or a Subsidiary Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes or such Subsidiary Guarantee at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes or such Subsidiary Guarantee, (b) such new Indebtedness, determined as of the date of this Note Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded; and (c) such new Indebtedness is Incurred by the Company or by the Restricted Subsidiary who is the obligor on the Indebtedness to be refinanced or refunded;
(iv) Indebtedness (A) in respect of performance, surety or appeal or similar bonds, competition or similar guarantees provided in the ordinary course of business, and (B) arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary (other than Guarantees of Indebtedness described in clause (AIncurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition), (B) in a principal amount not to exceed the gross proceeds actually received by the Company or (C) of this Section 3(d)(2))any Restricted Subsidiary in connection with such disposition;
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(hv) Indebtedness of the Company and the Company's Restricted Subsidiaries or any Subsidiary Guarantor to the extent the net proceeds thereof are concurrently promptly (A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change in Control or (B) deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms hereinas set forth in Article Seven;
(ivi) Guarantees of the Notes and Guarantees of Indebtedness of the Company or any Subsidiary Guarantor by any Restricted Subsidiary provided the Guarantee of such Indebtedness is permitted by and made in accordance with Section 3.07;
(vii) Indebtedness represented (including Guarantees) of the Company, any Subsidiary Guarantor or any Foreign Subsidiary Incurred to finance the cost (including the cost of design, development, acquisition, construction, installation, improvement, transportation or integration) to acquire telecommunications and data transmission equipment, computer-related equipment and, in each case, related software licenses (including acquisitions by guarantees way of Capitalized Lease and acquisitions of the Capital Stock of a Person that becomes a Restricted Subsidiary to the extent of the fair market value of the telecommunications and data transmission equipment, computer-related equipment and software licenses so acquired) by the Company, such Restricted Subsidiary or such Foreign Subsidiary after the Closing Date;
(viii) Indebtedness of the Company not to exceed, at any one time outstanding, two times (A) the Net Cash Proceeds received by the Company after the Closing Date from the issuance and sale of its Capital Stock (other than Disqualified Stock, until such time as such Disqualified Stock has been converted into or exchanged for Capital Stock that is not Disqualified Stock) to a Person that is not a Subsidiary of the Company, to the extent (I) such Net Cash Proceeds have not been used pursuant to clause (C)(3) of the first paragraph or clause (iii), (iv) or (vi) of the second paragraph of Section 3.04 to make a Restricted Payment and (II) if such Net Cash Proceeds are used to consummate a transaction pursuant to which the Company Incurs Acquired Indebtedness, the amount of such Net Cash Proceeds exceeds one-half of the amount of Acquired Indebtedness so Incurred; provided that such Indebtedness does not mature prior to the Stated Maturity of the Notes and has an Average Life longer than the Notes;
(ix) Acquired Indebtedness of (a) any Restricted Subsidiary, provided such Acquired Indebtedness consists solely of Capitalized Lease Obligations, (b) any Subsidiary Guarantor or Foreign Subsidiary and (c) any Restricted Subsidiary, provided that 90% of the consideration paid by the Company and its Restricted Subsidiaries for the acquisition of such Restricted Subsidiary (other than such Acquired Indebtedness) was made in Capital Stock (other than Disqualified Stock) of the Company or the Company's Restricted Subsidiaries proceeds from the sale of Indebtedness otherwise permitted to be incurred under the Indenturesuch Capital Stock;
(jx) Strategic Subordinated Indebtedness;
(xi) Indebtedness incurred by the Company of Foreign Subsidiaries outstanding at any time in an aggregate principal amount whichnot to exceed the greater of (a) $50 million, together less any amount of such Indebtedness permanently repaid as provided under Section 3.10 and (b) 85% of the combined revenues of such Foreign Restricted Subsidiaries for the most recently ended fiscal quarter for which financial information is available; provided that such revenues shall be excluded to the extent used to Incur Indebtedness under clause (i) above;
(xii) Subordinated Indebtedness of the Company or any Subsidiary Guarantor (in addition to Indebtedness permitted under clauses (i) through (ix) above) in an aggregate amount outstanding at any time not to exceed $100 million, plus after the occurrence of a Public Equity Offering an additional $200 million principal amount of convertible Subordinated Indebtedness, less any amount of such Indebtedness permanently repaid as provided under Section 3.10; and
(xiii) Indebtedness of the Company or any Restricted Subsidiary in an aggregate principal amount outstanding at any time not to exceed $50 million, less any amount of such Indebtedness permanently repaid as provided under Section 3.10.
(b) Notwithstanding any other provision of this Section 3.03, the maximum amount of Indebtedness that the Company, a Restricted Subsidiary or a Subsidiary Guarantor may Incur pursuant to this Section 3.03 shall not be deemed to be exceeded, with all respect to any outstanding Indebtedness due solely to the result of fluctuations in the exchange rates of currencies.
(c) For purposes of determining any particular amount of Indebtedness under this Section 3.03, (1) 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 and (2) any Liens granted pursuant to the equal and ratable provisions referred to in Section 3.09 shall not be treated as Indebtedness. For purposes of determining compliance with this Section 3.03, in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described in paragraph (a) above, the Company, in its sole discretion, shall classify, and from time to time may reclassify, and divide among different clauses or among such clauses and the first paragraph of this covenant, such item of Indebtedness and such Indebtedness will be treated as having been Incurred as so specified.
(d) The Company will not, and will not permit any Subsidiary Guarantor to, incur any Indebtedness that is contractually subordinated in right of payment to any other Indebtedness of the Company outstanding or such Subsidiary Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes or such Subsidiary Guarantor's Subsidiary Guarantee on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtednesssubstantially identical terms.
Appears in 1 contract
Sources: Indenture (Loudcloud Inc)
Limitation on Indebtedness. (1) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur any Indebtedness; provided, directly however, that the Company or indirectly, any Restricted Subsidiary may Incur Indebtedness unless, if on the date of such incurrence, Incurrence and after giving effect thereto the Consolidated Coverage Debt to EBITDA Ratio exceeds 2.0 to 1would be less than 7:1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur any or all of Incur the following Indebtedness:
(a) Bank Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the in an aggregate principal amount of such Indebtedness then outstanding does not to exceed the greater of $175,000,000 (585,000,000 less the then outstanding principal aggregate amount of Indebtedness arising under all prepayments of principal applied to permanently reduce any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPsuch Indebtedness;
(b) Indebtedness of the Company owed to and held by a Restricted any Wholly Owned Subsidiary and or Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted any Wholly Owned Subsidiary; provided, however, that (i) any subsequent issuance or transfer of any Capital Stock which or any other event that results in any such Restricted Wholly Owned Subsidiary ceasing to be a Restricted Wholly Owned Subsidiary or any subsequent transfer of any such Indebtedness (other than except to the Company or a Restricted Wholly Owned Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereofthereof and (ii) if the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Securities;
(c) Indebtedness (i) represented by the SecuritiesSecurities and the Guarantees, (ii) outstanding on the Closing Date (other than the Indebtedness described in clauses (a) and (b) above), (iii) consisting of Refinancing Indebtedness Incurred in respect of any Indebtedness described in this clause (c) (including Indebtedness Refinancing Indebtedness) or Section 4.03(1) or (iv) consisting of guarantees of any Indebtedness permitted under clauses (a) and (b) of this paragraph (2);
(di) Indebtedness of a Restricted Subsidiary Incurred and outstanding as of on or prior to the date of this Note on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness described in Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Subsidiary of, or was otherwise acquired by, the Company); provided, however, that on the date that such Restricted Subsidiary is acquired by the Company, the Company would have been able to Incur $1.00 of additional Indebtedness pursuant to Section 4.03(1) after giving effect to the Incurrence of such Indebtedness pursuant to this clause (A), d) and (Bii) Refinancing Indebtedness Incurred by the Company or a Restricted Subsidiary in respect of Indebtedness Incurred pursuant to this clause (C) of this Section 3(d)(2)d);
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) performance bonds, bankers' acceptances, letters of credit and surety or pursuant to clause (C) or (D) appeal bonds provided by the Company and the Restricted Subsidiaries in the ordinary course of this Section 3(d)(2) or this clause (E)their business;
(f) Purchase Money Indebtedness and Capitalized Lease Obligations in an aggregate principal amount not in excess of $20,000,000 at any time outstanding;
(g) Hedging Obligations consisting of Interest Rate the Company or Currency Protection Agreements any Guarantor directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred Incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities or any Guarantor pursuant to the terms Indenture for the purpose of the Indenture fixing or all New Notes pursuant to the terms hereinhedging interest rate risk or currency fluctuations;
(i) Indebtedness represented by guarantees of another Person Incurred and outstanding on or prior to the date on which such Person consolidates with or merges with or into the Company (other than Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Person consolidates with or merges with or into the Company); provided, however, that on the date that such transaction is consummated, the Company would have been able to Incur $1.00 of additional Indebtedness pursuant to Section 4.03(1) after giving effect to the Incurrence of such Indebtedness pursuant to this clause (h) and (ii) Refinancing Indebtedness Incurred by the Company or the Company's Restricted Subsidiaries Successor Company in respect of Indebtedness otherwise Incurred pursuant to subclause (i) of this clause (h); or
(i) Indebtedness (other than Indebtedness permitted to be incurred under the Indenture;
(jIncurred pursuant to Section 4.03(1) Indebtedness incurred by the Company or any other clause of this Section 4.03(2)) in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred Incurrence that, when added to all other Indebtedness Incurred pursuant to this clause (J)i) and then outstanding, does shall not exceed $55,000,0005,000,000.
(3) Notwithstanding the foregoing, the Company shall not Incur any Indebtedness pursuant to Section 4.03(2) above if the proceeds thereof are used, directly or indirectly, to repay, prepay, redeem, defease, retire, refund or refinance any Subordinated Obligations, unless such Indebtedness shall be subordinated to the Securities to at least the same extent as such Subordinated Obligations. With The Company shall not Incur any Indebtedness if such Indebtedness is subordinate or junior in ranking in any respect to any Senior Indebtedness unless such Indebtedness is Senior Subordinated Indebtedness or is expressly subordinated in right of payment to Senior Subordinated Indebtedness. In addition, the Company shall not Incur any Secured Indebtedness that is not Senior Indebtedness unless contemporaneously therewith effective provision is made to secure the Securities equally and ratably with (or on a senior basis to, in the case of Indebtedness subordinated in right of payment to the Notes) such Secured Indebtedness for so long as such Secured Indebtedness is secured by a Lien. A Guarantor shall not Incur any Indebtedness if such Indebtedness is by its terms expressly subordinate or junior in ranking in any respect to any Senior Indebtedness of such Guarantor unless such Indebtedness is Senior Subordinated Indebtedness of such Guarantor or is expressly subordinated in right of payment to Senior Subordinated Indebtedness of such Guarantor. In addition, a Guarantor shall not Incur any Secured Indebtedness that is not Senior Indebtedness of such Guarantor unless contemporaneously therewith effective provision is made to secure the Guarantee of such Guarantor equally and ratably with (or on a senior basis to, in the case of Indebtedness subordinated in right of payment to such Guarantee) such Secured Indebtedness for as long as such Secured Indebtedness is secured by a Lien.
(4) Notwithstanding any other provision of this Section 4.03, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may Incur pursuant to this Section 4.03 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rates of currencies. For purposes of determining the outstanding principal amount of any particular Indebtedness Incurred pursuant to this Section 4.03:
(a) Indebtedness Incurred pursuant to the Credit Agreement prior to or on the Closing Date shall be treated as Incurred pursuant to Section 4.03(2)(a);
(b) Indebtedness permitted under by this Section 3(d)(2)(J4.03 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 Section 4.03 permitting such Indebtedness; and
(c) no in the event that Indebtedness meets the criteria of more than $20,000,000 one of the types of Indebtedness may described in this Section 4.03, the Company, in its sole discretion, shall classify such Indebtedness and only be incurred pursuant required to include the amount of such provision Indebtedness in respect one of Purchase Money Indebtednesssuch clauses.
Appears in 1 contract
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company, the Issuer or any Subsidiary Guarantor may Incur Indebtedness unless, if on the date of such incurrence, Incurrence and after giving effect thereto and the application of the proceeds therefrom the Consolidated Coverage Ratio exceeds 2.0 to 1would be greater than 2.0:1.0.
(2b) Notwithstanding the foregoing paragraph (1a), the Company and its Restricted Subsidiaries may incur any or all of Incur the following Indebtedness:
(a1) (x) U.S. Bank Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the in an aggregate principal amount of such Indebtedness then outstanding does not to exceed the greater of (A) $175,000,000 (3,000,000,000, less the then outstanding principal aggregate amount of all prepayments of principal applied to permanently reduce any such Indebtedness arising under any Receivables Program in satisfaction of the Company Company’s or any Restricted Subsidiary, other than Indebtedness described in clause ’s obligations under Section 4.06 and (B) below) and the sum of (i) 5060% of the book value of the inventory of the Company and its Restricted Subsidiaries and plus (ii) 8580% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than any accounts receivable subject to any Receivables Program of pledged, sold or otherwise transferred or encumbered by the Company or any Restricted SubsidiarySubsidiary in connection with a Qualified Receivables Transaction), in each case determined case, as of the end of the most recent fiscal quarter for which financial statements have been filed with the SEC and (y) European Bank Indebtedness in accordance with GAAPan aggregate principal amount not to exceed €525,000,000; provided, however, that the amount of Indebtedness that may be Incurred pursuant to this clause (1) shall be reduced by any amount of Indebtedness Incurred and then outstanding pursuant to the election provision of clause (10)(A)(ii) below;
(b2) Indebtedness of the Company owed to and held by a any Restricted Subsidiary and or Indebtedness of a Restricted Subsidiary owed to and held by the Company or a any Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of any such Indebtedness (other than except to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereof;
(c3) Indebtedness (A) represented by the SecuritiesNotes issued on the Closing Date (not including any Additional Notes) and the Subsidiary Guarantees, (B) outstanding on the Closing Date (other than the Indebtedness described in clauses (1) and (2) above), and (C) consisting of Refinancing Indebtedness Incurred in respect of any Indebtedness described in this clause (3) (including Indebtedness that is Refinancing Indebtedness) or the foregoing paragraph (a);
(d4) (A) Indebtedness of a Restricted Subsidiary Incurred and outstanding as of on or prior to the date of this Note on which such Restricted Subsidiary was acquired by the Company or a Restricted Subsidiary (other than Indebtedness described Incurred in clause (Acontemplation of, in connection with, as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Subsidiary of or was otherwise acquired by the Company); provided, however, that on the date that such Restricted Subsidiary is acquired by the Company, (Bi) or (C) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries would have been able to the extent the net proceeds thereof are concurrently deposited to defease all Securities Incur $1.00 of additional Indebtedness pursuant to the terms of the Indenture or all New Notes pursuant foregoing paragraph (a) after giving effect to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date Incurrence of such incurrence which was incurred Indebtedness pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J4) no more than $20,000,000 of Indebtedness may be incurred pursuant or (ii) the Consolidated Coverage Ratio immediately after giving effect to such provision Incurrence and acquisition would be greater than such ratio immediately prior to such transaction and (B) Refinancing Indebtedness Incurred by a Restricted Subsidiary in respect of Purchase Money Indebtedness.Indebtedness Incurred by such Restricted Subsidiary pursuant to this clause (4);
(5) Indebtedness (A) in respect of performance bonds, bankers’ acceptances, letters of credit and surety or appeal bonds entered into by the Company or any Restricted Subsidiary in the ordinary course of business, and (B) Hedging Obligations entered into in the ordinary course of business to hedge risks with respect to the Company’s or a Restricted Subsidiary’s interest rate, currency or raw materials pricing exposure and not entered into for speculative purposes;
Appears in 1 contract
Limitation on Indebtedness. (1a) The the Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company may Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto, the Consolidated Coverage Ratio exceeds 2.0 2 to 11 if such Indebtedness is Incurred prior to July 31, 2001 or 2.25 to 1 if such Indebtedness in Incurred thereafter.
(2b) Notwithstanding the foregoing paragraph (1a), the Company and its Restricted Subsidiaries may incur Incur any or all of the following Indebtedness:
(ai) Indebtedness incurred by the Company Incurred pursuant to the Senior Credit Facility or any other revolving credit arrangementFacility; provided, however, that, after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (40 million less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and all principal payments with respect to such Indebtedness pursuant to Section 4.16(a)(ii)(A);
(ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
(b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a any of its Restricted SubsidiarySubsidiaries; provided, however, that (x) any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a any of its Restricted SubsidiarySubsidiaries) shall will be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereofobligor thereon that is not permitted to be Incurred under this clause (ii) and (y) if the Company and/or a Subsidiary Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Note and/or the Subsidiary Guaranty of such Subsidiary Guarantor, as the case may be;
(ciii) the SecuritiesNotes (other than Additional Notes) and the Exchange Notes;
(div) Indebtedness outstanding as of on the date of this Note Issue Date (other than Indebtedness described in clause (Ai), (Bii) or (Ciii) of this Section 3(d)(2)covenant);
(ev) Indebtedness of a Subsidiary Incurred and outstanding on or prior to the date on which such Subsidiary was acquired by the Company (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by the Company); provided, however, that on the date of such acquisition and after giving effect thereto, the Company would have been able to Incur at least $1.00 of additional Indebtedness pursuant to clause (a) above;
(vi) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(1paragraph (a) above or pursuant to clause (Ciii), (iv) or (Dv) of this Section 3(d)(2) above or this clause (Evi); provided, however, that to the extent such Refinancing Indebtedness directly or indirectly Refinances Indebtedness of a Subsidiary Incurred pursuant to clause (v), such Refinancing Indebtedness will be Incurred only by such Subsidiary;
(fvii) Hedging Obligations consisting of Interest Rate or Currency Protection Commodity Agreements not entered into for speculative purposes and directly related to Indebtedness permitted to be incurred hereunderIncurred by the Company or any of its Restricted Subsidiaries pursuant to this Notes Indenture;
(gviii) the Subsidiary Guaranties of the Subsidiary Guarantors with respect to the Notes and the Debentures;
(ix) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiaries, in an aggregate principal amount to not exceed the greater of 5% of Total Assets as of the date of incurrence and $2.5 million at any time outstanding;
(x) the guarantee by the Company or any of the Subsidiary Guarantors of the Company's Indebtedness or Indebtedness of a Restricted Subsidiary that was permitted to be incurred by another provision of this covenant;
(xi) the accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this covenant; provided, in each case, that the amount thereof is included in Consolidated Interest Expense of the Company as accrued;
(xii) Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred by or assumed in connection with the disposition of any business, assets or a Receivables Subsidiary, other than guarantees of Indebtedness described incurred by any person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; provided, however, that (a) such Indebtedness is not reflected on the balance sheet of the Company or any Restricted Subsidiary (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (Ba)) aboveand (b) the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including noncash proceeds (the fair market value of such noncash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Company and its Restricted Subsidiaries in connection with such disposition;
(xiii) the incurrence of obligations in respect of performance and surety bonds provided by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(xiv) the incurrence of Indebtedness consisting of guarantees of loans made to management for the purpose of permitting management to purchase Equity Interests of Parent, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary to exceed $1.0 million at the any one time of such incurrence pursuant to a Receivables Programoutstanding;
(hxv) Indebtedness of the Company and or any Restricted Subsidiary arising from the Company's Restricted Subsidiaries to honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the extent case of daylight overdrafts) drawn against insufficient funds in the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms ordinary course of the Indenture or all New Notes pursuant to the terms hereinbusiness, provided that such Indebtedness is satisfied within five business days of Incurrence;
(ixvi) Indebtedness represented by guarantees by of the Company issued to directors, employees, officers or consultants of the Company or a Restricted Subsidiary in connection with the Company's redemption or purchase of Capital Stock of the Company or Parent that, by its terms, is subordinated to the Notes, is not secured by any assets of the the Company or its Restricted Subsidiaries and does not require cash payments prior to the Stated Maturity of the Notes and Refinancing Indebtedness in respect thereof, in an aggregate principal amount which, when added together with the amount of Indebtedness otherwise permitted Incurred pursuant to be incurred under the Indenture;this clause (16) and then outstanding, does not exceed $1.0 million; and
(jxvii) Indebtedness incurred by the Company in an aggregate principal amount which, together with all the Company's other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause Incurrence (Jother than Indebtedness permitted by clauses (i) through (xvi) above or paragraph (a), ) does not exceed $55,000,00010 million at any one time outstanding.
(c) Notwithstanding the foregoing, neither the Company nor any of its Restricted Subsidiaries will Incur any Indebtedness pursuant to the foregoing paragraph (b) if the proceeds thereof are used, directly or indirectly, to Refinance any of the Company's Subordinated Obligations unless such Indebtedness will be subordinated to the Notes to at least the same extent as such Subordinated Obligations. With respect No Subsidiary Guarantor will Incur any Indebtedness pursuant to the foregoing paragraph (b) if the proceeds thereof are used, directly or indirectly, to Refinance any Subsidiary Guarantor Subordinated Obligation of such Subsidiary Guarantor unless such Indebtedness permitted will be subordinated to the obligations of such Subsidiary Guarantor under this Section 3(d)(2)(Jthe applicable Subsidiary Guaranty to at least the same extent as such Subsidiary Guarantor Subordinated Obligation.
(d) no For purposes of determining compliance with the foregoing covenant, (i) in the event that an item of Indebtedness meets the criteria of more than $20,000,000 one of the types of Indebtedness described above, the Company, in its sole discretion, will classify such item of Indebtedness and only be required to include the amount and type of such Indebtedness in one of the above clauses and (ii) an item of Indebtedness may be incurred pursuant divided and classified in more than one of the types of Indebtedness described above.
(e) the Company will not permit any Unrestricted Subsidiary to incur any Indebtedness other than Non-Recourse Debt; provided, however, that if any such provision in respect Indebtedness ceases to be Non-Recourse Debt, such event will be deemed to constitute an Incurrence of Purchase Money IndebtednessIndebtedness by the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Sources: Notes Indenture (Wec Co)
Limitation on Indebtedness. (1a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiary Subsidiaries to, incur, directly or indirectly, Incur any Indebtedness unless(other than Permitted Indebtedness).
(b) Notwithstanding the foregoing limitations, the Company or any of its Restricted Subsidiaries that is or, upon such Incurrence, becomes a Guarantor may Incur Indebtedness if (i) no Default or Event of Default shall have occurred and be continuing on the date of the proposed Incurrence thereof or would result as a consequence of such proposed Incurrence and (ii) on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur any or all of the following Indebtedness:
(a) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, thatproposed Incurrence, after giving effect to any such incurrencethereto, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program Consolidated Fixed Charge Coverage Ratio of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject is at least equal to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
(b) Indebtedness of the Company owed 2.0 to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence of such Indebtedness by the issuer thereof;1.0.
(c) For purposes of determining compliance with this Section 4.04, in the Securities;
event that an item of proposed Indebtedness meets the criteria of more than one of the categories described in clauses (da) through (m) of the definition of "Permitted Indebtedness" or is entitled to be Incurred pursuant to paragraph (b) of this Section 4.04, the Company may, in its sole discretion, classify or reclassify such item of Indebtedness outstanding in any manner that complies with this Section 4.04 as of the date of this Note (other than Incurrence or reclassification, as applicable. Accrual of interest, the accretion of accreted value, the payment of interest in the form of additional Indebtedness described and any change in clause (A), (B) or (C) the amount of Indebtedness outstanding due solely to the result of fluctuations in the exchange rate of currencies will not be deemed to be an Incurrence of Indebtedness for purposes of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness4.04.
Appears in 1 contract
Sources: Indenture (Aearo CO I)
Limitation on Indebtedness. (1a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, incur, directly or indirectly, Incur any Indebtedness unless, (other than the Notes and the Dollar Notes and Indebtedness existing on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1Closing Date), ; provided that the Company and its any Restricted Subsidiaries Subsidiary may incur any or all of the following Incur Indebtedness (including Acquired Indebtedness:
(a) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided), however, thatif, after giving effect to any the Incurrence of such incurrenceIndebtedness and the receipt and application of the proceeds therefrom, the pro forma Consolidated Leverage Ratio would be greater than zero and less than 5 to 1; provided that no more than 50% of the Indebtedness Incurred under this clause may be incurred by Restricted Subsidiaries. Notwithstanding the foregoing, the Company and any Restricted Subsidiary (except as specified below) may Incur each and all of the following: (i) Indebtedness outstanding at any time in an aggregate principal amount of such Indebtedness then outstanding does not to exceed the greater of (A) $175,000,000 200 million and (B) Consolidated Adjusted Operating Cash Flow for the preceding four quarters for which reports have been filed pursuant to Section 4.17, in each case less the then outstanding principal any amount of Indebtedness arising permanently repaid as provided under Section 4.10, provided that the aggregate amount of Indebtedness of Restricted Subsidiaries outstanding at any Receivables Program one time under this clause (i) shall not exceed one-half of the Company or any Restricted Subsidiary, other than Indebtedness described greater of the amounts referred to in clause (A) and clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and above; (ii) 85% of the book value of the accounts receivable of Indebtedness (A) to the Company and evidenced by an unsubordinated promissory note or other evidence of unsubordinated indebtedness (provided that such indebtedness may be subordinated to the Proposed ING Credit Facility) or (B) to any of its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
(b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted SubsidiarySubsidiaries; provided, however, provided that any subsequent issuance or transfer of any Capital Stock event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence an Incurrence of such Indebtedness not permitted by this clause (ii); (iii) Indebtedness issued in exchange for, or the net proceeds of which are used to refinance or refund, then outstanding Indebtedness (including, without limitation, the Notes), other than Indebtedness Incurred under clause (i), (ii), (iv), (vi), (vii), (viii), (ix), (x) or (xi) of this paragraph (which clauses are either unlimited in amount or provide for the refinancing of Indebtedness Incurred thereunder), and any refinancings thereof in an amount not to exceed the amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses); provided that Indebtedness the proceeds of which are used to refinance or refund 136 36 the Notes or Indebtedness that is pari passu with, or subordinated in right of payment to, the Notes shall only be permitted under this clause (iii) if (A) in case the Notes are refinanced in part or the Indebtedness to be refinanced is pari passu with the Notes, such new Indebtedness, by its terms or by the issuer thereof;
terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made pari passu with, or subordinate in right of payment to, the remaining Notes, (cB) in case the Securities;
Indebtedness to be refinanced is subordinated in right of payment to the Notes, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes, and (dC) Indebtedness outstanding such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded (assuming such Indebtedness had a final Stated Maturity three months later than its actual final stated maturity); and provided further that in no event may Indebtedness of the Company be refinanced by means of any Indebtedness of any Restricted Subsidiary pursuant to this Note (other than Indebtedness described in clause (iii); (iv) Indebtedness (A)) in respect of performance, surety or appeal bonds provided in the ordinary course of business, (B) under Currency Agreements and Interest Rate Agreements; provided that such agreements (a) are designed solely to protect the Company or its Subsidiaries against fluctuations in foreign currency exchange rates or interest rates and (b) do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder; and (C) arising from agreements providing for indemnification, adjustment of this Section 3(d)(2));
purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company (e) Refinancing Indebtedness in respect other than Guarantees of Indebtedness incurred pursuant to Section 3(d)(1) Incurred by any Person acquiring all or pursuant to clause (C) any portion of such business, assets or (D) Restricted Subsidiary of this Section 3(d)(2) or this clause (Ethe Company for the purpose of financing such acquisition);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an a principal amount not exceeding 95% of to exceed the aggregate unpaid balance of gross proceeds actually received by the Receivables and Related Assets of Company or any Restricted Subsidiary in connection with such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
disposition; (hv) Indebtedness of the Company and the Company's Restricted Subsidiaries , to the extent the net proceeds thereof are concurrently promptly (A) used to purchase Notes or Dollar Notes tendered in an Offer to Purchase made as a result of Change in Control or (B) deposited to defease all Securities pursuant to the terms Notes as described in Sections 8.02 and 8.03; (vi) Guarantees of the Indenture Notes or all New Dollar Notes pursuant or Guarantees of Indebtedness of the Company by any Restricted Subsidiary provided the Guarantee of such Indebtedness is permitted by and made in accordance with Section 4.06; (vii) secured Indebtedness, in an aggregate amount not to exceed $15 million at any one time outstanding, Incurred to finance the terms herein;
cost (iincluding the cost of purchase or installation) Indebtedness represented by guarantees of equipment or other tangible capital assets used or useful in the media, communications or entertainment business, in each case acquired by the Company or a Restricted Subsidiary after the Closing Date; (viii) Indebtedness of the 137 37 Company not to exceed, at any one time outstanding, two times the Net Cash Proceeds (less the amount of such proceeds applied as provided in clause (ii) or (iii) of the second paragraph of Section 4.03 or applied to repay Indebtedness of the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred received by the Company (or any Restricted Subsidiary that Guarantees the Notes in accordance with Section 4.06; provided that the Company delivers to the Trustee an aggregate principal amount which, together with all Opinion of Counsel to the effect (subject to customary caveats) that such Guarantee is enforceable and provided further that such Capital Stock is not subsequently repurchased by the Company or any Restricted Subsidiary) after the Closing Date from the issuance and sale of its Capital Stock (other than Disqualified Stock) to a Person that is not a Subsidiary of the Company; provided that such Indebtedness matures after the Stated Maturity of the Notes and has an Average Life longer than the Notes; (ix) Indebtedness of the Company and each Restricted Subsidiary, not to exceed in the aggregate at any one time outstanding 60% of the accounts receivable (net of accounts more than 90 days past due, reserves and allowances for doubtful accounts, determined in accordance with GAAP) of the Company and its Restricted Subsidiaries on a consolidated basis as set forth on the date balance sheet of the Company most recently filed with the Commission pursuant to Section 4.17; provided that any such Indebtedness of any Restricted Subsidiary is not Guaranteed by the Company; (x) Indebtedness of any Restricted Subsidiary, not to exceed at any one time outstanding the amount of the commitment to lend to such Restricted Subsidiary by any Person not an Affiliate thereof on the Closing Date (and refinancings of such incurrence which was Indebtedness); and (xi) without duplication of Indebtedness permitted under clause (x), Indebtedness incurred under the Proposed ING Credit Facility (including any Guarantees relating thereto) up to $35 million in principal amount at any one time outstanding, and any refinancings thereof.
(b) Notwithstanding any other provision of this Section 4.02, the maximum amount of Indebtedness that the Company or a Restricted Subsidiary may Incur pursuant to this clause (J)Section 4.02 shall not be deemed to be exceeded, does not exceed $55,000,000. With with respect to any outstanding Indebtedness, due solely to the result of fluctuations in interest rates or the exchange rates of currencies.
(c) For purposes of determining any particular amount of Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.4.02
Appears in 1 contract
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company or a Restricted Subsidiary may Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto, either (i) the Consolidated Coverage Ratio equals or exceeds 2.0 2.25 to 11.0.
(2b) Notwithstanding the foregoing paragraph (1Section 4.03(a), the Company and its any Restricted Subsidiaries Subsidiary may incur any or all of Incur the following Indebtedness:
(a1) Indebtedness incurred by the Company Incurred pursuant to any Credit Facility, so long as the aggregate amount of all Indebtedness outstanding under all Credit Facility Facilities does not, at any one time, exceed the aggregate amount of borrowing availability as of such date under all Credit Facilities that determine availability on the basis of a borrowing base or any other revolving credit arrangementasset-based calculation; provided, however, that, after giving effect to any that in no event shall such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of (x) $175,000,000 300 million and (less the then outstanding principal amount y) 75% of Indebtedness arising under any Receivables Program ACNTA as of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum date of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPsuch Incurrence;
(b2) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Wholly Owned Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Wholly Owned Subsidiary ceasing to be a Restricted Wholly Owned Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted another Wholly Owned Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereof;
(c3) The Securities issued on the SecuritiesIssue Date;
(d4) Indebtedness outstanding as of on the date of this Note issue Date (other than Indebtedness described in clause paragraph (Ab) (1), (B2) or (C3) of this Section 3(d)(2)4.03);
(e5) Indebtedness of (A) a Restricted Subsidiary Incurred and outstanding on or prior to the date on 57 48 which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company) and (B) the Company or a Restricted Subsidiary Incurred for the purpose of financing all or any part of the cost of acquiring oil and gas properties, another Person (other than a Person that was, immediately prior to such acquisition, a Subsidiary of the Company) engaged in the Oil and Gas Business or all or substantially all the assets of such a Person; provided, however, that in the case of each of clause (A) and clause (B) above, on the date of such Incurrence and after giving effect thereto, the Consolidated Coverage Ratio equals or exceeds 2.0 to 1.0;
(6) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(14.03(a) or Section 4.03(b)(3), (4), (5), this clause (6) or clause (7) below; provided, however, that to the extent such Refinancing Indebtedness directly or indirectly Refinances Indebtedness or Preferred Stock of a Restricted Subsidiary described in Section 4.03(b)(5), such Refinancing Indebtedness shall be Incurred only by such Restricted Subsidiary or the Company;
(7) Non-recourse Purchase Money Indebtedness;
(8) Indebtedness with respect to Production Payments; provided, however, that any such Indebtedness shall be Limited Recourse Production Payments; provided further, however, that the Net Present Value of the reserves related to such Production Payments shall not exceed 30% of ACNTA at the time of Incurrence;
(9) Indebtedness consisting of the Guaranties and any Guarantees by DRI or any Restricted Subsidiary of Indebtedness Incurred by the Company pursuant to clause paragraphs (Cb)(1) or and (D3) of this Section 3(d)(2) or this clause (E)4.03;
(f10) Hedging Obligations Indebtedness consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunderIncurred by the Company and its Restricted Subsidiaries pursuant to the Indenture; 58 49
(11) Indebtedness under Oil and Gas Hedging Contracts and Currency Agreements entered into in the ordinary course of business for the purpose of limiting risks that arise in the ordinary course of business of the Company and its Restricted Subsidiaries;
(g12) Indebtedness incurred in respect of bid, performance or surety obligations issued by a Receivables Subsidiaryor for the account of the Company or any Restricted Subsidiary in the ordinary course of business, including Guarantees and letters of credit functioning as or supporting such bid, performance or surety obligations (in each case other than Indebtedness described in clause (B) above, in for an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Programobligation for money borrowed);
(h13) Indebtedness of the Company or a Restricted Subsidiary Incurred to finance capital expenditures and the Company's Restricted Subsidiaries to the extent the net proceeds Refinancing Indebtedness Incurred in respect thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, when taken together with the amount of all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred Incurred pursuant to this clause (J)13) and then outstanding, does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.20 million;
Appears in 1 contract
Sources: Indenture (Denbury Management Inc)
Limitation on Indebtedness. (1a) The Company Symmetry shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that Symmetry, the Company and any Subsidiary Guarantor shall be entitled to Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto on a pro forma basis, the Consolidated Coverage Ratio exceeds 2.0 2.00 to 11.00.
(2b) Notwithstanding the foregoing paragraph (1Section 4.03(a), Symmetry and the Company and its Restricted Subsidiaries may incur shall be entitled to Incur any or all of the following Indebtedness:
(a1) Indebtedness incurred by the Company Incurred pursuant to the Credit Facility or any other revolving credit arrangementAgreement; provided, however, that, after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such all Indebtedness Incurred under this clause (1) and then outstanding does not exceed the greater of (i) $175,000,000 (less the then outstanding sum of all principal amount payments with respect to such Indebtedness made pursuant to paragraph (b)(3)(A) of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause Section 4.06 and (Bii) below) and the sum of (ix) 5070% of the book value of the inventory of Symmetry and the Company and its Restricted Subsidiaries and (iiy) 85% of the book value of the accounts receivable of Symmetry and the Company and its Restricted Subsidiaries (other than accounts receivable subject in the case of each of clauses (x) and (y) above, determined based on the consolidated balance sheet of Symmetry for the fiscal quarter most recently ended on or prior to any Receivables Program of the Company or any Restricted Subsidiarydate on which such Indebtedness is Incurred for which financial statements are publicly available), in each case determined in accordance with GAAP;
(b2) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company Symmetry or a Restricted Subsidiary; provided, however, that (A) any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company Symmetry or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereofobligor thereon, (B) if the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Securities, (C) if a Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations of such Guarantor with respect to its Note Guarantee and (D) if Novamerican Steel is the obligor on such Indebtedness and such Indebtedness is owed to a Restricted Subsidiary that is not the Company or a Subsidiary Guarantor, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Intercompany Obligations;
(c3) Indebtedness represented by the Securities;
(d4) Indebtedness outstanding as of on the date of this Note Issue Date (other than Indebtedness described in clause (A1), (B2) or (C3) of this Section 3(d)(24.03(b));
(e5) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Subsidiary was acquired (directly or indirectly) by Symmetry (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by Symmetry); provided, however, that on the date of such acquisition and after giving proformaeffect thereto, Symmetry would have been entitled to Incur at least $1.00 of additional Indebtedness pursuant to Section 4.03(a);
(6) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(14.03(a) or pursuant to clause (C3), (4) or (D5) of this Section 3(d)(24.03(b) or this clause (E6); provided, however, that to the extent such Refinancing Indebtedness directly or indirectly Refinances Indebtedness of a Subsidiary Incurred pursuant to clause (5), such Refinancing Indebtedness shall be Incurred only by such Subsidiary;
(f7) Indebtedness consisting of Hedging Obligations consisting in respect of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Hedging Agreements entered into in the ordinary course of business designed to hedge or mitigate risks to which Symmetry or any Restricted Subsidiary has actual exposure (other than in respect of Capital Stock or Indebtedness represented by guarantees by of Symmetry or any of its Subsidiaries), and not for the Company purpose of speculation, and (ii) Hedging Agreements entered into in the ordinary course of business to 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 Symmetry or any Restricted Subsidiary; provided, however, that in the Company's Restricted Subsidiaries case of Hedging Obligations relating to interest rates, (A) such Hedging Obligations relate to payment obligations in respect of Indebtedness otherwise permitted to be incurred Incurred under this Section 4.03 and (B) the Indenturenotional principal amount of such Hedging Obligations at the time Incurred does not exceed the principal amount of the Indebtedness to which such Hedging Obligations relate;
(j8) Indebtedness (A) in respect of performance bonds, bid bonds, surety bonds, appeal bonds and bank guarantees and letters of credit (other than bank guarantees and letters of credit supporting other Indebtedness), in each case Incurred in the ordinary course of business, including those securing health, safety and environmental obligations in the ordinary course of business, and (B) owed to providers of workers’ compensation, health, disability, retirement or other employee benefits or casualty or liability insurance pursuant to reimbursement or indemnification obligations, including obligations in respect of letters of credit;
(9) Indebtedness incurred arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of its Incurrence;
(10) the Guarantee by Symmetry, the Company or any Subsidiary Guarantor of Indebtedness of Symmetry, the Company or any Subsidiary Guarantor that was permitted to be Incurred by another clause of this Section 4.03; provided, however, that, if the Indebtedness being Guaranteed is subordinated to or paripassu with the Securities, then the Guarantee thereof Incurred pursuant to this clause (10) shall be subordinated or paripassu, as applicable, to the same extent as the Indebtedness being Guaranteed;
(11) Purchase Money Indebtedness Incurred by Symmetry or any Restricted Subsidiary to finance the acquisition, construction, lease, repair or improvement by Symmetry or a Restricted Subsidiary of assets in the ordinary course of business, and any Refinancing Indebtedness Incurred to Refinance such Indebtedness, and Attributable Debt in respect of Sale/Leaseback Transactions in an aggregate principal amount which, when added together with the amount of Indebtedness Incurred pursuant to this clause (11) and then outstanding, does not exceed $10,000,000;
(12) Indebtedness Incurred by a Receivables Entity in a Qualified Receivables Transaction that is not recourse to Symmetry or any Restricted Subsidiary (except for Standard Securitization Undertakings); provided, however, that after giving effect to any such Incurrence and the application of the net proceeds therefrom, the aggregate principal amount of all such Indebtedness shall not exceed an amount that, if added to the amount of Indebtedness outstanding under clause (1) of this Section 4.03(b), would exceed the aggregate amount of Indebtedness that could then be Incurred under such clause (1);
(13) Indebtedness Incurred by a Foreign Restricted Subsidiary in an aggregate principal amount which, when added together with the amount of Indebtedness Incurred pursuant to this clause (13) and then outstanding, does not exceed $5,000,000;
(14) Indebtedness arising from agreements of Symmetry or a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case Incurred or assumed in connection with the acquisition or disposition of any business, assets or a Subsidiary of Symmetry in accordance with the terms of this Indenture, other than Guarantees by Symmetry or any Restricted Subsidiary of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing the acquisition; provided, however, that (A) such Indebtedness is not reflected on the balance sheet of Symmetry or any Restricted Subsidiary (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (A)) and (B) in the case of a disposition, the maximum aggregate liability in respect of all such Indebtedness shall not exceed the gross proceeds, including the Fair Market Value of noncash proceeds (the Fair Market Value of such noncash proceeds being measured at the time such proceeds are received and without giving effect to any subsequent changes in value), actually received by Symmetry and the Restricted Subsidiaries in connection with such disposition; and
(15) Indebtedness of Symmetry or a Restricted Subsidiary in an aggregate principal amount which, when taken together with all other Indebtedness of Symmetry and the Company Restricted Subsidiaries outstanding on the date of such incurrence which was incurred pursuant to this clause Incurrence (Jother than Indebtedness permitted by clauses (1) through (14) above or Section 4.03(a)), does not exceed $55,000,000. With respect 15,000,000.
(c) Notwithstanding the foregoing, (i) none of Symmetry, the Company or any Subsidiary Guarantor shall Incur any Indebtedness pursuant to Section 4.03(b) if the proceeds thereof are used, directly or indirectly, to Refinance any Subordinated Obligations of Symmetry, the Company or any Subsidiary Guarantor unless such Indebtedness permitted under shall be subordinated to the Securities or the applicable Note Guarantee, as applicable, to at least the same extent as such Subordinated Obligations, and (ii) Novamerican Steel shall not Incur any Indebtedness pursuant to Section 4.03(b) if the proceeds thereof are used, directly or indirectly, to Refinance any obligations of Novamerican Steel that are subordinated in right of payment to the Intercompany Obligations, unless such Indebtedness shall be subordinated to the Intercompany Obligations to at least the same extent as such subordinated obligations being Refinanced.
(d) For purposes of determining compliance with this Section 3(d)(2)(J4.03, (1) no any Indebtedness outstanding on the Issue Date under the Credit Agreement after the application of the net proceeds from the sale of the Securities will be treated as Incurred on the Issue Date under clause (1) of Section 4.03(b) and any Indebtedness Incurred by a Receivables Entity in a Qualified Receivables Transaction that is outstanding on the Issue Date will be treated as Incurred under clause (12) of Section 4.03(b); (2) subject to clause (1) of this paragraph (d), if an item of Indebtedness (or any portion thereof) meets the criteria of more than $20,000,000 one of the types of Indebtedness described above, the Company, in its sole discretion, will classify such item of Indebtedness (or any portion thereof) at the time of Incurrence and will only be required to include the amount and type of such Indebtedness in one of the above clauses; (3) subject to clause (1) of this paragraph (d), the Company will be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described above; and (4) any Indebtedness originally classified as Incurred pursuant to one of the clauses in paragraph (b) above (other than pursuant to clause (1) or (12) of Section 4.03(b)) may later be incurred reclassified by the Company such that it will be deemed as having been Incurred pursuant to Section 4.03(a) or another clause in Section 4.03(b) to the extent that such reclassified Indebtedness could be Incurred pursuant to such provision paragraph or clause at the time of such reclassification.
(e) For purposes of determining compliance with any U.S. dollar denominated restriction on the Incurrence of Indebtedness where the Indebtedness Incurred is denominated in a different currency, the amount of such Indebtedness will be the U.S. Dollar Equivalent determined on the date of the Incurrence of such Indebtedness; provided, however, that if any such Indebtedness denominated in a different currency is subject to a Currency Agreement with respect to U.S. dollars covering all principal, premium, if any, and interest payable on such Indebtedness, the amount of Purchase Money Indebtednesssuch Indebtedness expressed in U.S. dollars will be as provided in such Currency Agreement. The principal amount of any Refinancing Indebtedness Incurred in the same currency as the Indebtedness being Refinanced will be the U.S. Dollar Equivalent of the Indebtedness Refinanced, except to the extent that (1) such U.S. Dollar Equivalent was determined based on a Currency Agreement, in which case the Refinancing Indebtedness will be determined in accordance with the preceding sentence, and (2) the principal amount of the Refinancing Indebtedness exceeds the principal amount of the Indebtedness being Refinanced, in which case the U.S. Dollar Equivalent of such excess, as appropriate, will be determined on the date such Refinancing Indebtedness is Incurred.
(f) For purposes of determining the outstanding amount of Indebtedness under any clause of this Section 4.03, Guarantees, Liens or letter of credit obligations supporting any Indebtedness that is included in the calculation of the outstanding amount of Indebtedness shall not be included so long as Incurred by a Person that could have Incurred such Indebtedness pursuant to such clause.
Appears in 1 contract
Sources: Indenture (Novamerican Steel Inc.)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company, the Issuer or any Subsidiary Guarantor may Incur Indebtedness unless, if on the date of such incurrence, Incurrence and after giving effect thereto and the application of the proceeds therefrom the Consolidated Coverage Ratio exceeds 2.0 to 1would be greater than 2.0:1.0.
(2b) Notwithstanding the foregoing paragraph (1a), the Company and its Restricted Subsidiaries may incur any or all of Incur the following Indebtedness:
(a1) (x) U.S. Bank Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the in an aggregate principal amount of such Indebtedness then outstanding does not to exceed the greater of (A) $175,000,000 (3,500,000,000, less the then outstanding principal aggregate amount of all prepayments of principal applied to permanently reduce any such Indebtedness arising under any Receivables Program in satisfaction of the Company Company’s or any Restricted Subsidiary, other than Indebtedness described in clause ’s obligations under Section 4.06 and (B) below) and the sum of (i) 5060% of the book value of the inventory of the Company and its Restricted Subsidiaries and plus (ii) 8580% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than any accounts receivable subject to any Receivables Program of pledged, sold or otherwise transferred or encumbered by the Company or any Restricted SubsidiarySubsidiary in connection with a Qualified Receivables Transaction), in each case determined case, as of the end of the most recent fiscal quarter for which financial statements have been filed with the SEC and (y) European Bank Indebtedness in accordance with GAAPan aggregate principal amount not to exceed €550,000,000; provided, however, that the amount of Indebtedness that may be Incurred pursuant to this clause (1) shall be reduced by any amount of Indebtedness Incurred and then outstanding pursuant to the election provision of clause (10)(A)(ii) below;
(b2) Indebtedness of the Company owed to and held by a any Restricted Subsidiary and or Indebtedness of a Restricted Subsidiary owed to and held by the Company or a any Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of any such Indebtedness (other than except to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereof;
(c3) Indebtedness (A) represented by the SecuritiesNotes (not including any Additional Notes) and the Note Guarantees, (B) outstanding on the Closing Date (other than the Indebtedness described in clauses (1) and (2) above), and (C) consisting of Refinancing Indebtedness Incurred in respect of any Indebtedness described in this clause (3) (including Indebtedness that is Refinancing Indebtedness) or the foregoing paragraph (a);
(d4) (A) Indebtedness of a Restricted Subsidiary Incurred and outstanding as of on or prior to the date of this Note on which such Restricted Subsidiary was acquired by the Company or a Restricted Subsidiary (other than Indebtedness described Incurred in clause (Acontemplation of, in connection with, as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Subsidiary of or was otherwise acquired by the Company); provided, however, that on the date that such Restricted Subsidiary is acquired by the Company, (Bi) or (C) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries would have been able to the extent the net proceeds thereof are concurrently deposited to defease all Securities Incur $1.00 of additional Indebtedness pursuant to the terms of the Indenture or all New Notes pursuant foregoing paragraph (a) after giving effect to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date Incurrence of such incurrence which was incurred Indebtedness pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J4) no more than $20,000,000 of Indebtedness may be incurred pursuant or (ii) the Consolidated Coverage Ratio immediately after giving effect to such provision Incurrence and acquisition would be greater than such ratio immediately prior to such transaction and (B) Refinancing Indebtedness Incurred by a Restricted Subsidiary in respect of Purchase Money Indebtedness.Indebtedness Incurred by such Restricted Subsidiary pursuant to this clause (4);
(5) Indebtedness (A) in respect of performance bonds, bankers’ acceptances, bank guarantees, letters of credit, surety or appeal bonds or similar credit transactions entered into by the Company or any Restricted Subsidiary in the ordinary course of business, and (B) Hedging Obligations entered into in the ordinary course of business to hedge risks with respect to the Company’s or a Restricted Subsidiary’s interest rate, currency or raw materials pricing exposure and not entered into for speculative purposes;
Appears in 1 contract
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company may Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto, the Consolidated Coverage Leverage Ratio exceeds 2.0 would be less than or equal to 14.0 to 1.0.
(2b) Notwithstanding the foregoing paragraph (1a), the Company and its or the Restricted Subsidiaries (to the extent specified and so long as each Restricted Subsidiary is in compliance with Section 10.18), may incur Incur any or all of the following Indebtedness:
(a) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
(b) Indebtedness of the Company owed having an aggregate principal amount not to and held by a Restricted Subsidiary and exceed $50 million at any time outstanding;
(ii) Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that (i) any subsequent issuance or transfer of any Capital Stock event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereofobligor thereon and (ii) if the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes;
(ciii) the SecuritiesNotes and the Existing Notes;
(div) Indebtedness outstanding as of the date of this Note on May 17, 1999 (other than Indebtedness described in clause (Ai), (Bii) or (Ciii) of this Section 3(d)(2)covenant);
(ev) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(1paragraph (a) or pursuant to clause (C) or (D) of this Section 3(d)(2iii) or this clause (Ev);
(fvi) the Incurrence by the Company of Indebtedness not to exceed, at any one time outstanding, 2.0 times the sum of (i) the aggregate Net Cash Proceeds received by the Company from the issuance and sale of, or capital contribution in respect of, its Capital Stock (other than Disqualified Stock and other than an issuance or sale to a Subsidiary of the Company or an issuance or sale to an employee stock ownership plan or to a trust established by the Company or any of its Subsidiaries for the benefit of their employees) subsequent to May 17, 1999 (less the amount of such proceeds used to make Restricted Payments as provided in clause (a) (3) (B) or (b) (i) of Section 10.13) and (ii) 80% of the Fair Market Value of property (other than cash or cash equivalents) received by the Company after May 17, 1999 from the issuance of Capital Stock (other than Disqualified Stock and other than an issuance to a Subsidiary of the Company) issued in connection with any acquisition of a company primarily engaged in a telecommunications business; provided, however, that such Indebtedness does not mature prior to the Stated Maturity of the Notes and the Average Life of such Indebtedness is greater than that of the Notes;
(vii) Hedging Obligations consisting of (i) Currency Agreements and (ii) Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunderIncurred by the Company pursuant to the Indenture; provided that such agreements do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation thereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(hviii) Indebtedness of the Company and the Company's Restricted Subsidiaries , to the extent the net proceeds thereof are concurrently promptly (A) used to purchase Notes pursuant to a Change of Control Offer or (B) deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms hereinArticle Four;
(iix) Indebtedness represented arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing such obligations if the Company or its Restricted Subsidiaries, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary (other than guarantees of Indebtedness Incurred by guarantees any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition), in a principal amount not to exceed the gross proceeds actually received by the Company or the Company's a Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the IndentureSubsidiary in connection with such disposition;
(jx) Strategic Subordinated Indebtedness;
(xi) Indebtedness arising from the honoring by a bank or other financial institution of a check, or similar instrument inadvertently (except in the case of daily overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within three business days of Incurrence;
(xii) Indebtedness consisting of performance and other similar bonds and reimbursement obli- gations Incurred by the Company in the ordinary course of business securing the performance of contractual, franchise or license obligations of the Company or a Restricted Subsidiary; and
(xiii) Indebtedness of the Company or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business in respect of workers’ compensation claims or self-insurance, or other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims; provided, however, that obligations arising upon the drawing of such letters of credit or the incurrence of such Indebtedness are reimbursed within 30 days following such drawing or incurrence.
(c) For purposes of determining compliance with the foregoing covenant, (i) in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described above, the Company, in its sole discretion, will classify such item of Indebtedness at the time of its Incurrence and only be required to include the amount and type of such Indebtedness in one of the above clauses and (ii) an item of Indebtedness may be divided and classified in more than one of the types of Indebtedness described above.
(d) Restricted Subsidiaries that are Guarantors of the Notes may guarantee (subject to compliance with Section 10.18) any Indebtedness incurred by the Company in an aggregate principal compliance with paragraph (a) or (b) above, and, for purposes of determining any particular amount which, together with all other of Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 covenant, such guarantee shall not be deemed to be the incurrence of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money any Indebtedness.
Appears in 1 contract
Sources: Indenture (Alestra)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company and its Restricted Subsidiaries shall be entitled to Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto on a pro forma basis, no Default has occurred and is continuing and the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2b) Notwithstanding the foregoing paragraph (1a), so long as no Default has occurred and is continuing, the Company and its the Restricted Subsidiaries may incur shall be entitled to Incur any or all of the following Indebtedness:
(a1) Indebtedness incurred by the Company Incurred pursuant to the Credit Facility Facility, including any amendment, modification, supplement, extension, restatement, replacement (including replacement after the termination of such Credit Facility), restructuring, increase, renewal, or any other revolving credit arrangementRefinancing thereof from time to time in one or more agreements or instruments; provided, however, that, after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of (i) $175,000,000 (675.0 million less the then outstanding sum of all principal amount of payments since April 11, 2000, with respect to such Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) belowpursuant to Section 4.9(a)(3)(A) and (ii) the sum of (ix) 50$100 million and (y) 20% of the book value Adjusted Consolidated Net Tangible Assets determined as of the inventory date of the Company and its Restricted Subsidiaries and (ii) 85% Incurrence of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPsuch Indebtedness;
(b2) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereofobligor thereon;
(c3) the Securities;
(d4) Indebtedness outstanding as of the date of this Note on April 11, 2000 (other than Indebtedness described in clause (A1), (B2) or (C3) of this Section 3(d)(24.3(b));
(e5) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Subsidiary was acquired by the Company (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by the Company);
(6) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(14.3(a) or pursuant to clause (C3), (4) or (D5) of this Section 3(d)(24.3(b) or this clause (E6); provided, however, that to the extent such Refinancing Indebtedness directly or indirectly Refinances Indebtedness of a Subsidiary Incurred pursuant to clause (5), such Refinancing Indebtedness shall be Incurred only by such Subsidiary;
(f7) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunderIncurred by the Company pursuant to this Indenture;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program8) Non-Recourse Debt;
(h9) Indebtedness in respect of bid, performance, reimbursement or surety obligations issued by or for the account of the Company or any Restricted Subsidiary in the ordinary course of business, including Guarantees and letters of credit functioning as or supporting such bid, performance, reimbursement or surety obligations (in each case other than for an obligation for money borrowed);
(10) Indebtedness consisting of obligations in respect of purchase price adjustments, indemnities or Guarantees of the same or similar matters in connection with the acquisition or disposition of Property;
(11) Indebtedness under Commodity Price Protection Agreements and Currency Exchange Protection Agreements entered into in the ordinary course of business for the purpose of limiting risks that arise in the ordinary course of business of the Company and its Restricted Subsidiaries;
(12) Indebtedness consisting of the Company's Restricted Subsidiaries Subsidiary Guarantee of the Guarantor (including any reinstatement of such Subsidiary Guarantee) and any Subsidiary Guarantee by the Company or a Subsidiary Guarantor of Indebtedness Incurred pursuant to paragraph (a) or pursuant to clause (1), (2), (3), (4), (7), (11) or (13) or pursuant to clause (6) to the extent the net proceeds thereof are concurrently deposited to defease all Securities Refinancing Indebtedness Incurred thereunder directly or indirectly Refinances Indebtedness Incurred pursuant to the terms of the Indenture paragraph (a) or all New Notes pursuant to the terms herein;clauses (3) or (4); and
(i13) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, when taken together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to Incurrence (other than Indebtedness permitted by clauses (1) through (12) of this clause (JSection 4.3(b) or Section 4.3(a)), does not exceed $55,000,000. With 50 million.
(c) Notwithstanding the foregoing, neither the Company nor any Subsidiary Guarantor shall Incur any Indebtedness pursuant to Section 4.3(b) if the proceeds thereof are used, directly or indirectly, to Refinance any Subordinated Obligations of the Company or a Subsidiary Guarantor unless such Indebtedness shall be subordinated to the Securities or to the Subsidiary Guaranty of such Subsidiary Guarantor to at least the same extent as such Subordinated Obligations.
(d) For purposes of determining compliance with this Section 4.3, (1) in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described herein, the Company, in its sole discretion, shall classify such item of Indebtedness at the time of Incurrence and only be required to include the amount and type of such Indebtedness in one of the above clauses and (2) the Company shall be entitled at the time of such Incurrence to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described herein.
(e) For purposes of determining compliance with any U.S. dollar denominated restriction on the Incurrence of Indebtedness where the Indebtedness Incurred is denominated in a different currency, the amount of such Indebtedness will be the U.S. Dollar Equivalent determined on the date of the Incurrence of such Indebtedness, provided, however, that if any such Indebtedness denominated in a different currency is subject to a Currency Exchange Protection Agreement with respect to U.S. dollars covering all principal, premium, if any, and interest payable on such Indebtedness, the amount of such Indebtedness permitted under this Section 3(d)(2)(Jexpressed in U.S. dollars will be as provided in such Currency Exchange Protection Agreement. The principal amount of any Refinancing Indebtedness Incurred in the same currency as the Indebtedness being Refinanced will be the U.S. Dollar Equivalent of the Indebtedness Refinanced, except to the extent that (1) no more than $20,000,000 such U.S. Dollar Equivalent was determined based on a Currency Exchange Protection Agreement, in which case the Refinancing Indebtedness will be determined in accordance with the preceding sentence, and (2) the principal amount of the Refinancing Indebtedness may exceeds the principal amount of the Indebtedness being Refinanced, in which case the U.S. Dollar Equivalent of such excess, will be incurred pursuant to determined on the date such provision in respect of Purchase Money IndebtednessRefinancing Indebtedness is Incurred.
Appears in 1 contract
Sources: Supplemental Indenture (Pioneer Natural Resources Co)
Limitation on Indebtedness. (1a) The Company UCAR International shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; PROVIDED, HOWEVER, that the Company, the Guarantors and the Intercompany Note Obligors shall be entitled to Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto on a PRO FORMA basis, no Default has occurred and is continuing and the Consolidated Coverage Ratio exceeds would be greater than 2.0 to 11 if such Indebtedness is Incurred prior to December 31, 2004 or 2.25 to 1 if such Indebtedness is Incurred thereafter.
(2b) Notwithstanding the foregoing paragraph (1a), UCAR International and the Company and its Restricted Subsidiaries may incur shall be entitled to Incur any or all of the following Indebtedness:
(a1) Indebtedness incurred Incurred by the Company Company, any Guarantor or any Intercompany Note Obligor pursuant to the any Revolving Credit Facility or any other revolving credit arrangementFacility; providedPROVIDED, howeverHOWEVER, that, immediately after giving effect to any such incurrenceIncurrence on a PRO FORMA basis, the aggregate principal amount of such all Indebtedness Incurred under this clause (1) and then outstanding outstanding, when added together with the aggregate principal amount of Indebtedness theretofore Incurred pursuant to clause (2) that could have been Incurred pursuant to this clause (1), does not exceed the greater of (A) $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause 250.0 million and (B) below) and the sum of (ix) 50% of the book value of the inventory of UCAR International and the Company and its Restricted Subsidiaries at the end of the most recent fiscal quarter for which financial statements are publicly available and (iiy) 8580% of the book value of the accounts receivable of UCAR and the Company and its Restricted Subsidiaries at the end of the most recent fiscal quarter for which financial statements are publicly available (excluding any accounts receivable pledged or otherwise supporting a Qualified Receivables Transaction);
(2) Indebtedness Incurred by the Company, any Guarantor or any Intercompany Note Obligor pursuant to any Term Loan Facility; PROVIDED, HOWEVER, that, after giving effect to any such Incurrence on a PRO FORMA basis, the aggregate principal amount of all Indebtedness Incurred under this clause (2) and then outstanding does not exceed (A) $226 million plus the maximum principal amount of Indebtedness that could be Incurred at such time under clause (1) above less (B) the aggregate sum of all principal payments actually made from time to time after the Issue Date with respect to such Indebtedness (other than accounts receivable subject principal payments made from any permitted Refinancings thereof Incurred pursuant to any Receivables Program of the Company or any Restricted Subsidiarythis clause (2), in each case determined in accordance with GAAP);
(b3) Indebtedness of the Company (x) owed to and held by UCAR International or a Restricted Subsidiary and (y) in the event the obligor on such Indebtedness of a Restricted Subsidiary is Carbone Savoie, owed to and held by its minority stockholders in an ▇▇▇u▇▇ ▇▇▇ to exceed $10.0 million outstanding in the Company or a Restricted Subsidiaryaggregate at any time and that is PRO RATA in amount, based on equity interests, with the amount of Indebtedness of Carbone Savoie owed to and held by UCAR International and its Re▇▇▇▇▇▇▇d ▇▇▇▇▇diaries pursuant to this clause (3); providedPROVIDED, howeverHOWEVER, that (A) any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company UCAR International or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereofobligor thereon and (B) if the Company, any Guarantor or any Intercompany Note Obligor is the obligor on such Indebtedness and the holder of such Indebtedness is a Person other than the Company, a Guarantor or an Intercompany Note Obligor, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Securities or the applicable Guaranty;
(c4) Indebtedness consisting of the Securities and the Exchange Securities (other than any Additional Securities);
(d5) Indebtedness outstanding as of on the date of this Note Issue Date (other than Indebtedness described in clause (A1), (B2), (3) or (C4) of this Section 3(d)(24.03(b));
(e6) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Restricted Subsidiary was acquired by UCAR International or, in the case of a Restricted Subsidiary formed to acquire a business, the date on which such business was acquired by such Restricted Subsidiary (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Subsidiary or was acquired by UCAR International or such business was acquired by such Restricted Subsidiary, as the case may be); PROVIDED, HOWEVER, that on the date of such acquisition and after giving PRO FORMA effect thereto, UCAR International would have been able to Incur at least $1.00 of additional Indebtedness pursuant to Section 4.03(a);
(7) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(1paragraph (a) or pursuant to clause (C4), (5) or (D6) of this Section 3(d)(24.03(b) or this clause (E7); PROVIDED, however, that to the extent such Refinancing Indebtedness directly or indirectly Refinances Indebtedness of the Company, a Guarantor or an Intercompany Note Obligor, such Refinancing Indebtedness shall be Incurred only by the Company, a Guarantor or an Intercompany Note Obligor;
(f) 8) Hedging Obligations consisting entered into in the ordinary course of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunderbusiness and not for the purpose of speculation;
(g9) Indebtedness incurred by a Receivables Subsidiaryobligations, in each case Incurred, made or given in the ordinary course of business, (A) in respect of performance bonds, bid bonds, bankers' acceptances, surety or appeal bonds and other than Indebtedness described in clause similar obligations of UCAR International or any of the Restricted Subsidiaries, (B) abovefor or in connection with pledges, deposits or payments in an amount not exceeding 95% connection with or to secure statutory, regulatory or similar obligations, including obligations under health, safety or environmental obligations, (C) arising from Guarantees to suppliers, lessors, licensees, contractors, franchisees or customers of obligations (other than Indebtedness) Incurred in the aggregate unpaid balance ordinary course of the Receivables business, (D) in respect of worker's compensation obligations, employee benefit obligations, property, casualty or liability insurance and Related Assets self-insurance and (E) trade-related letters of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Programcredit;
(h10) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms ordinary course of the Indenture or all New Notes pursuant to the terms hereinbusiness; PROVIDED, HOWEVER, that such Indebtedness is extinguished within five Business Days of its Incurrence;
(i11) Indebtedness represented by guarantees Capital Lease Obligations, Sale/Leaseback Transactions, mortgage financings or purchase money obligations, in each case Incurred by UCAR International or any Restricted Subsidiary for the Company purpose of financing all or any part of the Company's Restricted Subsidiaries construction, purchase or lease of, or repairs, improvements or additions to, property, plant or equipment used in a Related Business or Indebtedness Incurred to Refinance any such Indebtedness, purchase price or cost of construction or improvement, in each case Incurred no later than 365 days after the later of the acquisition, completion of construction, repair, improvement, addition or commencement of full operation of the property or in respect of any Capital Lease Obligation or any Sale/Leaseback Transaction permitted under this Indenture; PROVIDED, HOWEVER, that such Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount whichdoes not, when added together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred Incurred pursuant to this clause (J11) and then outstanding, exceed $10.0 million;
(12) Indebtedness consisting of agreements to provide for indemnification, adjustment of purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of UCAR International or any of the Restricted Subsidiaries pursuant to such agreements, in any case incurred in connection with the disposition or acquisition of any business assets or Restricted Subsidiary (other than Guarantees of Indebtedness or other obligations Incurred by any Person acquiring all or any portion of such business assets or Restricted Subsidiary for the purpose of financing such acquisition) in an amount not to exceed, in the case of a disposition, the gross proceeds actually received by UCAR International or any Restricted Subsidiary in connection with such disposition;
(13) Indebtedness consisting of (A) the Guaranties of the Guarantors, (B)(i) Guarantees by UCAR International, the Company, a Guarantor or an Intercompany Note Obligor of Indebtedness Incurred by a Restricted Subsidiary without violation of this Indenture, (ii) Guarantees by a Guarantor of Senior Indebtedness Incurred by UCAR International or the Company (so long as such Guarantor could have Incurred such Indebtedness directly without violation of this Indenture) without violation of this Indenture and (C) any Guarantee by the Company or any Guarantor of Indebtedness Incurred pursuant to clause (7) to the extent the Refinancing Indebtedness Incurred thereunder directly or indirectly Refinances Indebtedness Incurred pursuant to clause (4) of this Section 4.03(b);
(14) Indebtedness Incurred for working capital purposes by a Restricted Subsidiary that is neither a Guarantor nor an Intercompany Note Obligor; PROVIDED, HOWEVER, that the amount of such Indebtedness, when added together with the aggregate amount of all Indebtedness Incurred pursuant to this clause (14) and then outstanding, does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.10.0 million;
Appears in 1 contract
Sources: Indenture (Ucar International Inc)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company and its Subsidiary Guarantors shall be entitled to Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto on a pro forma basis, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2b) Notwithstanding the foregoing paragraph (1a), the Company and its the Restricted Subsidiaries may incur shall be entitled to Incur any or all of the following Indebtedness:
(a1) Indebtedness incurred Incurred by the Company and any Restricted Subsidiaries pursuant to the Credit Facility or any other revolving credit arrangementFacilities; provided, however, that, immediately after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such all Indebtedness Incurred under this clause (b)(1) and then outstanding does not exceed the greater of (x) $175,000,000 (575.0 million less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries all principal payments with respect to such Indebtedness pursuant to Section 4.06(a)(3)(A) and (ii) the aggregate principal amount of Indebtedness under Permitted Securitizations and (y) the sum of (i) 85% of (A) the consolidated book value of the accounts receivable of the Company and its the Restricted Subsidiaries less (other than accounts receivable subject B) the aggregate principal amount of Indebtedness under Permitted Securitizations with respect to any Receivables Program SPE Subsidiary that is a consolidated entity in accordance with GAAP and (ii) 60% of the consolidated book value of the inventories of the Company or any and the Restricted Subsidiary), in each case determined in accordance with GAAPSubsidiaries;
(b2) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that (A) any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereofobligor thereon, (B) if the Company is the obligor on such Indebtedness and a Subsidiary Guarantor is not the obligee thereon, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Securities, and (C) if a Subsidiary Guarantor is the obligor on such Indebtedness and a Subsidiary Guarantor is not the obligee thereon, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations of such Subsidiary Guarantor with respect to its Subsidiary Guaranty;
(c3) the Securities and the Exchange Securities (other than any Additional Securities) and the Senior Subordinated Notes (and the related guarantees);
(d4) Indebtedness outstanding as of on the date of this Note Issue Date (other than Indebtedness described in clause (A1), (B2) or (C3) of this Section 3(d)(24.03(b));
(e5) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Subsidiary was acquired by the Company (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by the Company); provided, however, that on the date of such acquisition and after giving pro forma effect thereto, either (a) the Consolidated Coverage Ratio would not be less than immediately prior to such transactions or (b) the Company would have been entitled to Incur at least $1.00 of additional Indebtedness pursuant to Section 4.03(a);
(6) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(14.03(a) or pursuant to clause (C3), (4) or (D5) of this Section 3(d)(24.03(b) or this clause (E6); provided, however, that to the extent such Refinancing Indebtedness directly or indirectly Refinances Indebtedness of a Subsidiary Incurred pursuant to clause (5), such Refinancing Indebtedness shall be Incurred only by such Subsidiary;
(f7) Hedging Obligations that are incurred in the ordinary course of business (and not for speculative purposes) (1) consisting of Interest Rate Agreements, (2) for the purpose of fixing or Currency Protection Agreements directly related hedging currency exchange rate risk with respect to Indebtedness permitted any currency exchanges or (3) for the purpose of fixing or hedging commodity price risk with respect to be incurred hereunderany commodity purchases;
(g) 8) the Incurrence of Indebtedness incurred by a Receivables Subsidiaryin respect of workers' compensation claims, payment obligations in connection with health or other than Indebtedness described in clause (B) abovetypes of social security benefits, unemployment or other insurance or self-insurance obligations, reclamation, statutory obligations, bankers' acceptances, performance, surety or similar bonds and letters of credit or completion or performance guarantees or other similar obligations, in an amount not exceeding 95% each case in the ordinary course of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Programbusiness;
(h9) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms ordinary course of the Indenture or all New Notes pursuant to the terms hereinbusiness; provided, however, that such Indebtedness is extinguished within five Business Days of its Incurrence;
(i10) Indebtedness represented consisting of the Subsidiary Guaranty of a Subsidiary Guarantor and any Guarantee by guarantees a Subsidiary Guarantor of Indebtedness Incurred in accordance with the provisions of this Indenture;
(11) Indebtedness (including Capital Lease Obligations) Incurred by the Company or the Company's any of its Restricted Subsidiaries to finance the purchase, lease or improvement of property (real or personal) or equipment (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets (but no other material assets)) and Refinancing Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in respect thereof in an aggregate principal amount which, when added together with the amount of all other Indebtedness then outstanding and Incurred pursuant to this clause (11), does not exceed 5% of Consolidated Net Tangible Assets;
(12) Indebtedness Incurred by Foreign Subsidiaries in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, not to exceed $50.0 million;
(13) Permitted Securitizations; and
(14) Indebtedness of the Company or any of the Subsidiary Guarantors in an aggregate principal amount which, when taken together with all other Indebtedness of the Company and the Subsidiary Guarantors outstanding on the date of such incurrence which was incurred pursuant to Incurrence (other than Indebtedness permitted by clauses (1) through (13) of this clause (JSection 4.03(b) or Section 4.03(a)), does not exceed $55,000,000. With 40.0 million.
(c) Notwithstanding the foregoing, neither the Company nor any Subsidiary Guarantor shall Incur any Indebtedness pursuant to Section 4.03(b) if the proceeds thereof are used, directly or indirectly, to Refinance any Subordinated Obligations of the Company or any Subsidiary Guarantor unless such Indebtedness shall be subordinated to the Securities or the applicable Subsidiary Guaranty to at least the same extent as such Subordinated Obligations.
(d) For purposes of determining compliance with this Section 4.03,
(1) any Indebtedness outstanding under the Credit Agreement on the date of this Indenture after the application of the net proceeds from the sale of the Securities will be treated as Incurred on the Issue Date under clause (1) of paragraph (b) above,
(2) in the event that an item of Indebtedness (or any portion thereof) meets the criteria of more than one of the types of Indebtedness described in clauses (a) and (b), the Company, in its sole discretion, will classify such item of Indebtedness (or any portion thereof) at the time of Incurrence and will only be required to include the amount and type of such Indebtedness in one of the above clauses,
(3) the Company will be entitled at the time of Incurrence to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described above, and with respect to any Indebtedness permitted Incurred pursuant to any specific clause under this Section 3(d)(2)(J4.03(b), the Company may after such Indebtedness is Incurred reclassify all or a portion of such Indebtedness under a different clause of Section 4.03(b), and
(4) no more than $20,000,000 Indebtedness Incurred under clauses (11), (12) or (14) of Indebtedness may Section 4.03(b) shall be reclassified automatically as having been incurred pursuant to Section 4.03(a) if at any date after such Indebtedness is Incurred; such Indebtedness could have been Incurred under Section 4.03(a) but only to the extent such Indebtedness could have been so Incurred.
(e) For purposes of determining compliance with any U.S. dollar restriction on the Incurrence of Indebtedness where the Indebtedness Incurred is denominated in a different currency, the amount of such Indebtedness will be the U.S. Dollar Equivalent, determined on the date of the Incurrence of such Indebtedness; provided, however, that if any such Indebtedness denominated in a different currency is subject to a Currency Agreement with respect to U.S. dollars, covering all principal, premium, if any, and interest payable on such Indebtedness, the amount of such Indebtedness expressed in U.S. dollars shall be as provided in such Currency Agreement. If Refinancing Indebtedness is Incurred to refinance Indebtedness that is denominated in a non-U.S. currency, and such refinancing would cause the applicable U.S. dollar-dominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-dominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, except to the extent that such U.S. Dollar Equivalent was determined based on a Currency Agreement, in which case the Refinancing Indebtedness shall be determined in accordance with the preceding sentence. Notwithstanding any other provision of this Section 4.03, the maximum amount of Indebtedness that the Company and the Subsidiary Guarantors may Incur pursuant to this Section 4.03 shall not be deemed to be exceeded solely as a result of fluctuations in respect the exchange rate of Purchase Money Indebtednesscurrencies.
Appears in 1 contract
Limitation on Indebtedness. (1a) The Company shall will not, and shall will not permit any Restricted Subsidiary Group Member to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company will be entitled to Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto on a pro forma basis, the Consolidated Coverage Leverage Ratio exceeds 2.0 would be less than 6.0 to 1.
(2b) Notwithstanding the foregoing paragraph (1Section 4.03(a), so long as no Default has occurred and is continuing, the Company and its the Restricted Subsidiaries may incur Group Members will be entitled to Incur any or all of the following Indebtedness:
(a1) Indebtedness incurred by the Company Incurred pursuant to the one or more Permitted Credit Facility or any other revolving credit arrangementFacilities; provided, however, that, after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed (A) the greater of (x) $175,000,000 1.15 billion and (y) 85% of Eligible Receivables less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% all principal payments with respect to such Indebtedness (other than Indebtedness Incurred pursuant to the revolving loan portion of the book value of the inventory of the Company and its Restricted Subsidiaries a Permitted Credit Facility) pursuant to Section 4.06(a)(3)(A) and (ii) 85% the principal amount of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to such Indebtedness assumed by a transferee in any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPAsset Disposition;
(b2) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted SubsidiaryGroup Member; provided, however, that (A) any subsequent issuance or transfer of any Capital Stock or the occurrence of any other event which results in any such Restricted Subsidiary Group Member ceasing to be a Restricted Subsidiary Group Member or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted SubsidiaryGroup Member) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereof;
obligor thereon and (cB) if the Company is the obligor on such Indebtedness, such Indebtedness is not secured and is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Securities;
(d3) Indebtedness outstanding as of the date of this Note Securities (other than Indebtedness described in clause (Aany Additional Securities), (B) or (C) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary2008 Senior Notes, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company Issue Date Discount Notes and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms hereinIssue Date Euro Notes;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.
Appears in 1 contract
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; PROVIDED, HOWEVER, that the Company and its Restricted Subsidiaries shall be entitled to Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto on a PRO FORMA basis, no Default has occurred and is continuing and the Consolidated Coverage Ratio exceeds 2.0 (i) 2.00 to 11,00, if such Incurrence occurs on or prior to March 31, 2005, or (ii) 2.25 to 1.00, if such Incurrence occurs after such date.
(2b) Notwithstanding the foregoing paragraph (1Section 4.03(a), the Company and its the Restricted Subsidiaries may incur shall be entitled to Incur any or all of the following Indebtedness:
(a1) Indebtedness incurred by the Company and the Restricted Subsidiaries pursuant to the any Revolving Credit Facility or any other revolving credit arrangementFacility; providedPROVIDED, howeverHOWEVER, that, immediately after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such all Indebtedness Incurred under this Section 4.03 (b)(1) and then outstanding does not exceed the greater of (A) $175,000,000 (65.0 million less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (iall principal payments with respect to such Indebtedness pursuant to Section 4.06(a)(3)(A) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries that are 45 accompanied by corresponding permanent commitment reductions and (iiB) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries;
(2) Indebtedness Incurred by the Company and its Restricted Subsidiaries pursuant to any Term Loan Facility; PROVIDED, HOWEVER, that, after giving effect to any such Incurrence, the aggregate principal amount of all Indebtedness Incurred under this Section 4.03(b)(2) and then outstanding does not exceed $225.0 million less the aggregate sum of all principal payments actually made from time to time after the Issue Date with respect to such Indebtedness (other than accounts receivable subject to principal payments made from any Receivables Program of the Company or any Restricted Subsidiarypermitted Refinancings thereof), in each case determined in accordance with GAAP;
(b3) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Wholly Owned Subsidiary; providedPROVIDED, howeverHOWEVER, that (A) any subsequent issuance or transfer of any Capital Stock which that results in any such Restricted Wholly Owned Subsidiary ceasing to be a Restricted Wholly Owned Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Wholly Owned Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereofobligor thereon, (B) if the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Securities and (C) if a Subsidiary Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations of such obligor with respect to its Subsidiary Guaranty;
(c4) the Securities (other than any Additional Securities);
(d5) Indebtedness outstanding as of on the date of this Note Issue Date (other than Indebtedness described in clause (A1), (B2) , (3) or (C4) of this Section 3(d)(24.03(b));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.
Appears in 1 contract
Sources: Indenture (Diagnostic Pathology Management Services Inc)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur any Indebtedness; provided, directly however, that the Company or indirectly, any Restricted Subsidiary may Incur Indebtedness unless, if on the date of the Incurrence of such incurrenceIndebtedness, after giving effect to the Incurrence thereof, the Consolidated Coverage Ratio exceeds 2.0 would be equal to 1or greater than 2.00:1.00; provided further, that the amount of Indebtedness that may be Incurred pursuant to this Section 4.03(a) by Restricted Subsidiaries that are not Subsidiary Guarantors shall not exceed an amount at any time outstanding equal to the greater of $150.0 million and 2.5% of Consolidated Total Assets.
(2b) Notwithstanding the foregoing paragraph (1Section 4.03(a), the Company and its Restricted Subsidiaries may incur any or all of Incur the following Indebtedness:
(ai) Indebtedness incurred by Incurred pursuant to any Credit Facility (including in respect of letters of credit or bankers’ acceptances issued or created thereunder) in an aggregate principal amount at any time outstanding pursuant to this Section 4.03(b)(i) (with letters of credit, guarantees and similar forms of credit support being deemed to have a principal amount equal to the maximum potential liability of the Company pursuant or any Restricted Subsidiary thereunder) not to exceed an amount equal to the Credit Facility or any other revolving credit arrangement; providedsum of (A) $2,800.0 million, however, (B) $700.0 million and (C) an additional amount after all amounts have been Incurred under subclauses (A) and (B) such that, after giving effect to the Incurrence of such Indebtedness, the Consolidated Secured Net Leverage Ratio would be less than 2:50:1:00 (calculated (x) assuming all Indebtedness Incurred under this Section 4.03(b)(i) is secured and without netting the cash proceeds of any such incurrence, Indebtedness and (y) excluding from such calculation any Indebtedness Incurred concurrently under the aggregate principal amount foregoing subclause (B) in the same transaction or series of related transactions on the date of determination of the Consolidated Secured Net Leverage Ratio (it being understood that such Indebtedness then outstanding does shall not exceed be excluded from any such calculation made on any subsequent date));
(ii) Indebtedness (A) of any Restricted Subsidiary to the greater of $175,000,000 Company or (less the then outstanding principal amount of Indebtedness arising under any Receivables Program B) of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject Subsidiary to any Receivables Program of the Company or any Restricted Subsidiary; provided that, in the case of this Section 4.03(b)(ii), in each case determined in accordance with GAAP;
(bx) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (other than except to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence case an Incurrence of such Indebtedness by the issuer thereofthereof not permitted by this Section 4.03(b)(ii), (y) if the Company is the obligor on such Indebtedness and the holder of such Indebtedness is not a Subsidiary Guarantor, such Indebtedness is expressly subordinated in right of payment to all obligations with respect to the Securities and (z) if a Subsidiary Guarantor is the obligor on such Indebtedness and the holder of such Indebtedness is neither the Company nor a Subsidiary Guarantor, such Indebtedness is expressly subordinated in right of payment to all obligations of such Subsidiary Guarantor with respect to its Subsidiary Guarantee; provided further that nothing in the foregoing clauses (y) or (z) shall prohibit the periodic payment of interest thereon or the repayment of such Indebtedness at maturity or otherwise in compliance with the terms of this Indenture;
(ciii) Indebtedness represented by the Securities (not including any Additional Securities) and the Subsidiary Guarantees (not including any Subsidiary Guarantees in respect of any Additional Securities), any Indebtedness (other than the Indebtedness Incurred pursuant to Section 4.03(b)(i) or Section 4.03(b)(ii)) outstanding on the Issue Date and any Refinancing Indebtedness Incurred in respect of any Indebtedness Incurred pursuant to this Section 4.03(b)(iii) or Section 4.03(a);
(div) Purchase Money Obligations and Capitalized Lease Obligations, and in each case any Refinancing Indebtedness with respect thereto; provided that the aggregate principal amount of such Indebtedness at any time outstanding pursuant to this Section 4.03(b)(iv) shall not exceed an amount equal to the greater of $150.0 million and 2.5% of Consolidated Total Assets;
(v) Indebtedness outstanding as consisting of accommodation guarantees for the benefit of trade creditors of the date Company or any Restricted Subsidiary;
(vi) (A) Guarantees by the Company or any Restricted Subsidiary of this Note Indebtedness or any other obligation or liability of the Company or any Restricted Subsidiary (other than any Indebtedness described Incurred by the Company or such Restricted Subsidiary, as the case may be, in clause violation of this Section 4.03); provided that, except in the case of Guarantees of Indebtedness, obligations or liabilities incurred in the ordinary course of business, (x) if the Company is the obligor on such Indebtedness and the holder of such Indebtedness is not a Subsidiary Guarantor, such Indebtedness is expressly subordinated in right of payment to all obligations with respect to the Securities and (y) if a Subsidiary Guarantor is the obligor on such Indebtedness and the holder of such Indebtedness is neither the Company nor a Subsidiary Guarantor, such Indebtedness is expressly subordinated in right of payment to all obligations of such Subsidiary Guarantor with respect to its Subsidiary Guarantee, or (B) without limiting Section 4.11, Indebtedness of the Company or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to such Person securing Indebtedness of the Company or any Restricted Subsidiary (other than any Indebtedness Incurred by the Company or such Restricted Subsidiary, as the case may be, in violation of this Section 4.03);
(vii) Indebtedness of the Company or any Restricted Subsidiary (A) arising from the honoring of a check, draft or similar instrument of such Person drawn against insufficient funds; provided that such Indebtedness is extinguished within five Business Days of its Incurrence, or (B) consisting of guarantees, indemnities, obligations in respect of earnouts or other purchase price adjustments, or similar obligations, Incurred in connection with the acquisition or disposition of any business, assets or Person;
(viii) Indebtedness of the Company or any Restricted Subsidiary in respect of (A) letters of credit, bankers’ acceptances or other similar instruments or obligations issued, or relating to liabilities or obligations Incurred, in the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), (B) completion guarantees, surety, judgment, appeal, bid or performance bonds, workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or other similar bonds, instruments or obligations, provided, or relating to liabilities or obligations Incurred, in the ordinary course of business, (C) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes), (D) Management Guarantees, (E) the financing of insurance premiums in the ordinary course of business, (F) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, (G) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Company or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement or (H) Bank Products Obligations;
(ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition or (B) otherwise Incurred in connection with a Special Purpose Financing in an aggregate principal amount at any time outstanding under this Section 4.03(b)(ix) not exceeding $600.0 million; provided that that the aggregate principal amount of Indebtedness of Foreign Subsidiaries Incurred pursuant to this Section 4.03(b)(ix) shall not exceed $300.0 million at any time outstanding; provided further that (1) such Indebtedness is not recourse to the Company or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), (2) in the event such Indebtedness shall become recourse to the Company or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness shall be deemed to be, and must be classified by the Company as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this Section 3(d)(24.03 for so long as such Indebtedness shall be so recourse and (3) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), the Company may classify such Indebtedness in whole or in part as Incurred under this Section 4.03(b)(ix);
(ex) Refinancing Indebtedness of (A) the Company or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred (including as consideration) in respect connection with, any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Company or any Restricted Subsidiary, or (B) any Person that is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger or consolidation); provided that on the date of such acquisition, merger or consolidation, on a pro forma basis after giving effect thereto, either (x) the Company would be permitted to Incur at least an additional $1.00 of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C4.03(a) or (Dy) the Consolidated Coverage Ratio of the Company would equal or be greater than the Consolidated Coverage Ratio of the Company immediately prior to giving effect thereto; and any Refinancing Indebtedness with respect to any Indebtedness Incurred pursuant to this Section 3(d)(2) or this clause (E4.03(b)(x);
(fxi) Hedging Obligations consisting Indebtedness issuable upon the conversion or exchange of Interest Rate or Currency Protection Agreements directly related to shares of Disqualified Stock issued in accordance with Section 4.03(a), and any Refinancing Indebtedness permitted to be incurred hereunderwith respect thereto;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(hxii) Indebtedness of the Company and the Company's or any Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company Subsidiary in an aggregate principal amount whichamount, together with all other Indebtedness Incurred pursuant to this Section 4.03(b)(xii) and then outstanding, not exceeding an amount equal to the greater of $300.0 million and 5.0% of Consolidated Total Assets;
(xiii) Indebtedness of Foreign Subsidiaries in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $150.0 million and 2.5% of Consolidated Total Assets; provided that the aggregate principal amount of the Indebtedness Incurred pursuant to this Section 4.03(b)(xiii) that is secured by Liens permitted under Section 4.11 shall not exceed $35.0 million at any time;
(xiv) Indebtedness of (A) Pinwheel, in an aggregate principal amount at any time outstanding not to exceed $200 million and (B) other joint ventures (other than Pinwheel) in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $50.0 million and 1.0% of Consolidated Total Assets; provided that, in each case, both before and immediately after giving effect to the Incurrence of any such Indebtedness, no Default or Event of Default shall have occurred and be continuing; and
(xv) Indebtedness in respect of Sale and Leaseback Transactions; provided that at the time of such entering into such Sale and Leaseback Transaction and after giving effect thereto, the aggregate amount of the net present value (discounted according to GAAP at the cost of debt implied in the lease) of the obligations of the lessee for rental payments during the then remaining term of any applicable lease for such Sale and Leaseback Transaction and for all Sale and Leaseback Transactions so entered into by the Company and its Restricted Subsidiaries, does not exceed an amount equal to the greater of $75.0 million and 1.5% of Consolidated Total Assets.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 4.03:
(i) any other obligation of the obligor on such Indebtedness (or of any other Person who could have Incurred such Indebtedness under this Section 4.03) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness;
(ii) in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in Section 4.03(b), the Company, in its sole discretion, shall classify or reclassify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of the clauses of Section 4.03(b) (including in part under one such clause and in part under another such clause); provided that (if the Company shall so determine) any Indebtedness Incurred pursuant to Section 4.03(b)(xii) shall cease to be deemed Incurred or outstanding for purposes of such clause but shall be deemed Incurred for the purposes of Section 4.03(a) from and after the first date on which the Company or any Restricted Subsidiary could have Incurred such Indebtedness under Section 4.03(a) without reliance on Section 4.03(b)(xii);
(iii) in the event that Indebtedness could be Incurred in part under Section 4.03(a), the Company, in its sole discretion, may classify a portion of such Indebtedness as having been Incurred under Section 4.03(a) and thereafter the remainder of such Indebtedness as having been Incurred under Section 4.03(b);
(iv) the amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP; and
(v) the principal amount of Indebtedness outstanding under any clause of Section 4.03(b) shall be determined on a pro forma basis giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness. Notwithstanding anything herein to the contrary, Indebtedness outstanding or otherwise Incurred by the Company on or prior to the Issue Date under the Credit Facilities shall be classified at all times as Incurred under Section 4.03(b)(i), and not under Section 4.03(a).
(d) For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Indebtedness denominated in a foreign currency, the U.S. dollar equivalent principal amount of such Indebtedness Incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving or deferred draw Indebtedness; provided that (i) the U.S. dollar equivalent principal amount of any such Indebtedness outstanding on the Issue Date shall be calculated based on the relevant currency exchange rate in effect on the Issue Date, (ii) if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency (or in a different currency from such Indebtedness so being Incurred), and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such incurrence which was incurred pursuant refinancing, such U.S. dollar-denominated restriction shall be deemed not to this clause (J), have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed $55,000,000. With respect to (A) the outstanding or committed principal amount (whichever is higher) of such Indebtedness permitted under this Section 3(d)(2)(Jbeing refinanced plus (B) no more than $20,000,000 the aggregate amount of Indebtedness may be fees, underwriting discounts, premiums and other costs and expenses incurred pursuant to such provision in respect of Purchase Money Indebtedness.connection wit
Appears in 1 contract
Sources: Indenture (Greif Inc)
Limitation on Indebtedness. (1) The Company Borrower shall not, and shall not suffer or permit any Restricted Subsidiary to, create, incur, assume, suffer to exist, or otherwise become or remain directly or indirectlyindirectly liable with respect to, any Indebtedness unlessIndebtedness, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur any or all of the following Indebtednessexcept:
(a) Indebtedness of the Borrower incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPthis Agreement;
(b) Indebtedness of the Company owed Borrower consisting of Contingent Obligations permitted pursuant to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence of such Indebtedness by the issuer thereofSection 6.08;
(c) Indebtedness of the SecuritiesBorrower existing on the Closing Date and set forth in Schedule 6.05;
(d) Indebtedness outstanding as of the date of this Note (other than Indebtedness described Borrower incurred in clause (A), (B) or (C) of this connection with leases permitted pursuant to Section 3(d)(2))6.09;
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E)Subordinated Debt;
(f) Hedging Obligations consisting Indebtedness of Interest Rate or Currency Protection Agreements directly related a Person which becomes a Subsidiary after the date hereof, provided that (i) such Indebtedness existed at the time such Person became a Subsidiary and was not created in anticipation of the acquisition and (ii) immediately after giving effect to Indebtedness permitted to the acquisition of such Person by the Borrower no Default shall have occurred and be incurred hereundercontinuing;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness representing the extensions of credit described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables ProgramSection 6.04(c);
(h) Indebtedness of the Company and the Company's Restricted Foreign Subsidiaries to the extent the net proceeds thereof are concurrently deposited third parties equal to defease all Securities pursuant to the terms an aggregate of the Indenture or all New Notes pursuant to the terms hereinno more than $10,000,000 outstanding at any given time;
(i) Indebtedness represented by guarantees by in respect of letters of credit (other than Letters of Credit issued under this Agreement) issued for the Company or account of the Company's Restricted Borrower and Subsidiaries in an aggregate face amount outstanding of Indebtedness otherwise permitted up to be incurred under the Indenture;$2,000,000; and
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date Borrower and Domestic Subsidiaries equal to an aggregate of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness5,000,000 outstanding at any given time.
Appears in 1 contract
Limitation on Indebtedness. (1a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, incur, directly or indirectly, any Indebtedness unless, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur to, Incur any Indebtedness (other than the Notes and the Euro Notes (including any Exchange Notes and any Exchange Notes (as defined in the Euro Notes Indenture), but excluding any Additional Notes or all of Additional Notes (as defined in the following Indebtedness:
(a) Euro Notes Indenture), and other Indebtedness incurred by existing on the Closing Date); PROVIDED that the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, thatPermanent Guarantor may Incur Indebtedness if, after giving effect to any the Incurrence of such incurrenceIndebtedness and the receipt and application of the proceeds therefrom, the Consolidated Leverage Ratio would be greater than zero and less than 6:1. Notwithstanding the foregoing, the Company and any Restricted Subsidiary (except as specified below) may Incur each and all of the following:
(i) Indebtedness outstanding at any time in an aggregate principal amount not to exceed (after giving effect to any refinancing thereof) the sum of (a) $100 million, less any amount of such Indebtedness then outstanding does not exceed permanently repaid as provided under Section 4.11 of this Indenture, plus (b) an amount equal to the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum lesser of (i1) 5080% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the consolidated book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPGAAP (determined as of the end of the most recently ended fiscal quarter for which reports have been filed with the Commission or provided to the Trustee) and (2) $100 million;
(bii) Indebtedness of owed (A) to the Company owed to and held evidenced by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed promissory note or (B) to and held by the Company or a any Restricted Subsidiary; provided, however, PROVIDED that any subsequent issuance or transfer of any Capital Stock event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence an Incurrence of such Indebtedness not permitted by the issuer thereofthis clause (ii);
(c) the Securities;
(diii) Indebtedness issued to refinance then outstanding Indebtedness (other than Indebtedness Incurred under clause (i), (ii), (iv), (vi), (viii), (xi) or (xii) of this paragraph) and any refinancings thereof, in an amount not to exceed the amount so refinanced (plus premiums, accrued interest, fees and expenses); PROVIDED that Indebtedness the proceeds of which are used to refinance the Notes in part or Indebtedness that is PARI PASSU with, or expressly subordinated in right of payment to, the Notes or any Notes Guarantee shall only be permitted under this clause (iii) if (A) in case the Notes are refinanced in part or the Indebtedness to be refinanced is PARI PASSU with the Notes or any Notes Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made PARI PASSU with, or expressly subordinate in right of payment to, the remaining Notes or any Notes Guarantee, (B) in case the Indebtedness to be refinanced is expressly subordinated in right of payment to the Notes or any Notes Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes or any Notes Guarantee at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes or any Notes Guarantee and (C) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced; and PROVIDED FURTHER that in no event may Indebtedness of the Company be refinanced by means of any Indebtedness of any Restricted Subsidiary pursuant to this Note (other than Indebtedness described in clause (A), (B) or (C) of this Section 3(d)(2)iii);
(eiv) Refinancing Indebtedness (A) in respect of Indebtedness incurred performance, surety, appeal or other similar bonds provided in the ordinary course of business and (B) arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from Guarantees or letters of credit, bankers' acceptances, surety or performance bonds or other similar instruments securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to Section 3(d)(1) such agreements, in any case Incurred in connection with the disposition of any business, assets or pursuant Restricted Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition), in a principal amount not to clause (C) exceed the gross proceeds actually received by the Company or (D) of this Section 3(d)(2) or this clause (E)any Restricted Subsidiary in connection with such disposition;
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(hv) Indebtedness of the Company and the Company's Restricted Subsidiaries or any Permanent Guarantor, to the extent the net proceeds thereof are concurrently promptly (A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change in Control or to purchase Euro Notes tendered in an offer to purchase under the Euro Notes Indenture or (B) deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms hereinas described under Article Eight;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.
Appears in 1 contract
Limitation on Indebtedness. (1) The Company shall not, and shall not suffer or permit any Restricted Subsidiary of its Subsidiaries to, create, incur, assume, suffer to exist, or otherwise become or remain directly or indirectlyindirectly liable with respect to, any Indebtedness unlessIndebtedness, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur any or all of the following Indebtednessexcept:
(a) Indebtedness incurred by the Company consisting of Contingent Obligations permitted pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPSection 8.06;
(b) Indebtedness of existing on the Company owed to Closing Date and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results set forth in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence of such Indebtedness by the issuer thereofSchedule 8.18;
(c) the SecuritiesIndebtedness secured by Liens permitted by subsection 8.01 (i) in an aggregate amount outstanding not to exceed $12,000,000;
(d) Indebtedness outstanding as of the date of this Note (other than Indebtedness described incurred in clause (A), (B) or (C) of this connection with leases permitted pursuant to Section 3(d)(2))8.08;
(e) Refinancing Indebtedness in respect of Without duplication, Indebtedness incurred pursuant in connection with letters of credit issued for the account of the Company or any of its Subsidiaries (but not including Letters of Credit issued hereunder) entered into in the Ordinary Course of Business in an aggregate amount outstanding not to Section 3(d)(1) or pursuant to clause (C) or (D) exceed $12,000,000, which limit shall include letters of this Section 3(d)(2) or this clause (Ecredit set forth on Schedule 6.11(c);
(f) Hedging Obligations consisting Indebtedness incurred in the Ordinary Course of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be Business in connection with (i) securing the performance of bids, trade contracts (other than for borrowed money), and statutory obligations, and (ii) obligations on surety and appeal bonds, and (iii) other obligations of a like nature incurred hereunderin the Ordinary Course of Business;
(g) Indebtedness incurred by of a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% wholly owned Subsidiary of the aggregate unpaid balance Company to another wholly owned Subsidiary of the Receivables Company or to the Company and Related Assets Indebtedness of such Receivables the Company to any wholly owned Subsidiary at of the time of such incurrence pursuant to a Receivables Program;Company; and
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by Loan Documents, and Letters of Credit Issued under the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money IndebtednessLoan Documents.
Appears in 1 contract
Limitation on Indebtedness. (1a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, incur, directly or indirectly, any Indebtedness unless, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur to, Incur any or all of Indebtedness (other than the following Indebtedness:
(a) 2010 Notes, the 2010 Note Guarantees and other Indebtedness incurred by existing on the Closing Date), provided that the Company pursuant to the Credit Facility or any other revolving credit arrangement; providedSubsidiary Guarantor may Incur Indebtedness, however, thatif, after giving effect to any such incurrence, the aggregate principal amount Incurrence of such Indebtedness then outstanding does not exceed and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio would be greater than 2.0:1, for Indebtedness Incurred on or prior to March 31, 2005, and 2.25:1, for Indebtedness Incurred thereafter. Notwithstanding the foregoing, the Company and any Restricted Subsidiary (except as specified below) may Incur each and all of $175,000,000 the following:
(less the then outstanding principal amount of i) Indebtedness arising under any Receivables Program of the Company or any Restricted SubsidiarySubsidiary Guarantor under the Credit Agreement outstanding at any time in an aggregate principal amount not to exceed $5 million plus the greater of (A) $70 million, other than less any amount of such Indebtedness described in clause permanently repaid as provided under Section 4.11 and (B) below) and the amount equal to the sum of (i) 5085% of the consolidated net book value of accounts receivable and 65% of the consolidated net book value of inventory of the Company and its Restricted Subsidiaries and as determined in accordance with GAAP as of the most recently ended fiscal quarter of the Company for which reports have been filed with the Commission or provided to the Trustee;
(ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries Indebtedness owed (other than accounts receivable subject A) to any Receivables Program of the Company or any Subsidiary Guarantor evidenced by an unsubordinated promissory note or (B) to any other Restricted Subsidiary), in each case determined in accordance with GAAP;
provided that (bx) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, any event that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence an Incurrence of such Indebtedness not permitted by this clause (ii) and (y) if the issuer thereofCompany or any Subsidiary Guarantor is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated in right of payment to the Notes, in the case of the Company or the Note Guarantee, in the case of a Subsidiary Guarantor;
(c) the Securities;
(diii) Indebtedness issued in exchange for, or the net proceeds of which are used to refinance, defease, renew or refund, then outstanding Indebtedness (other than Indebtedness outstanding under clause (i), (ii), (v) or (viii)) and any refinancings thereof in an amount not to exceed the amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses), provided that (a) Indebtedness the proceeds of which are used to refinance or refund the Notes or Indebtedness that is pari passu with, or subordinated in right of payment to, the Notes or a Note Guarantee shall only be permitted under this clause (iii) if (x) in case the Notes are refinanced in part or the Indebtedness to be refinanced is pari passu with the Notes or a Note Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made pari passu with, or subordinate in right of payment to, the remaining Notes or the Note Guarantee, or (y) in case the Indebtedness to be refinanced is subordinated in right of payment to the Notes or a Note Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes or the Note Guarantee at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes or the Note Guarantee, (b) such new Indebtedness, determined as of the date of this Note Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded and (other than c) such new Indebtedness described in clause (A), (B) is Incurred by the Company or (C) of this Section 3(d)(2))a Subsidiary Guarantor or by the Restricted Subsidiary who is the obligor on the Indebtedness to be refinanced or refunded;
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(hiv) Indebtedness of the Company and the Company's Restricted Subsidiaries , to the extent the net proceeds thereof are concurrently are, as promptly as practicable (A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change in Control or (B) deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms hereinas set forth in Article Eight;
(iv) Guarantees of the Notes and Guarantees of Indebtedness represented of the Company or any Subsidiary Guarantor by guarantees any Restricted Subsidiary, provided that the Guarantee of such Indebtedness is permitted by and made in accordance with Section 4.07;
(vi) the Incurrence by the Company or any Guarantor of Indebtedness, including, without limitation, Capitalized Lease Obligations, mortgage financings or purchase money obligations, Incurred for the Company's Restricted Subsidiaries purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Guarantor, provided that the aggregate principal amount of such Indebtedness otherwise permitted to be incurred under (together with refinancings thereof) Incurred in any fiscal year shall not exceed $5 million and that the Indenture;aggregate principal amount of such Indebtedness outstanding at any time (together with refinancings thereof) shall not exceed $10 million; and
(jvii) Indebtedness incurred by of the Company or any Subsidiary Guarantor (in addition to Indebtedness permitted under clauses (i) through (vi) above) in an aggregate principal amount which, outstanding at any time (together with all other refinancings thereof) not to exceed $20 million, less any amount of such Indebtedness permanently repaid as provided under Section 4.11.
(viii) the Incurrence by the Company of the Company outstanding on amount of Indebtedness represented by the date 2008 Notes and the 2008 Note Guarantees with an aggregate principal amount equal to the sum of such incurrence which was incurred pursuant to this clause (J)i) the amount of the December 15, does not exceed $55,000,000. With 2007 interest payment with respect to Indebtedness permitted under this Section 3(d)(2)(Jthe 2010 Notes held by the Consenting Holders (as defined in the Consent Solicitation Statement dated November 5, 2007 by the Company) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision and (ii) the consent fee in respect of Purchase Money Indebtednessconnection with the Consent Solicitation Statement dated November 5, 2007 by the Company.
Appears in 1 contract
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company and its Restricted Subsidiaries shall be entitled to Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto on a pro forma basis, no Default has occurred and is continuing and the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2b) Notwithstanding the foregoing paragraph (1a), so long as no Default has occurred and is continuing, the Company and its the Restricted Subsidiaries may incur shall be entitled to Incur any or all of the following Indebtedness:
(a1) Indebtedness incurred by the Company Incurred pursuant to the Credit Facility Facility, including any amendment, modification, supplement, extension, restatement, replacement (including replacement after the termination of such Credit Facility), restructuring, increase, renewal, or any other revolving credit arrangementRefinancing thereof from time to time in one or more agreements or instruments; provided, however, that, after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of (i) $175,000,000 (675.0 million less the then outstanding sum of all principal amount of payments since April 11, 2000, with respect to such Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) belowpursuant to Section 4.16(a)(3)(A) and (ii) the sum of (ix) 50$100 million and (y) 20% of the book value Adjusted Consolidated Net Tangible Assets determined as of the inventory date of the Company and its Restricted Subsidiaries and (ii) 85% Incurrence of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPsuch Indebtedness;
(b2) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereofobligor thereon;
(c3) the Debt Securities;
(d4) Indebtedness outstanding as of the date of this Note on April 11, 2000 (other than Indebtedness described in clause (A1), (B2) or (C3) of this Section 3(d)(24.13(b));
(e5) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Subsidiary was acquired by the Company (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by the Company);
(6) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(14.13(a) or pursuant to clause (C3), (4) or (D5) of this Section 3(d)(24.13(b) or this clause (E6); provided, however, that to the extent such Refinancing Indebtedness directly or indirectly Refinances Indebtedness of a Subsidiary Incurred pursuant to clause (5), such Refinancing Indebtedness shall be Incurred only by such Subsidiary;
(f7) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunderIncurred by the Company pursuant to this Indenture;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program8) Non-Recourse Indebtedness;
(h9) Indebtedness in respect of bid, performance, reimbursement or surety obligations issued by or for the account of the Company or any Restricted Subsidiary in the ordinary course of business, including Guarantees and letters of credit functioning as or supporting such bid, performance, reimbursement or surety obligations (in each case other than for an obligation for money borrowed);
(10) Indebtedness consisting of obligations in respect of purchase price adjustments, indemnities or Guarantees of the same or similar matters in connection with the acquisition or disposition of Property;
(11) Indebtedness under Commodity Price Protection Agreements and Currency Exchange Protection Agreements entered into in the ordinary course of business for the purpose of limiting risks that arise in the ordinary course of business of the Company and its Restricted Subsidiaries;
(12) Indebtedness consisting of the Company's Restricted Subsidiaries Subsidiary Guarantee of the Guarantor (including any reinstatement of such Subsidiary Guarantee) and any Subsidiary Guarantee by the Company or a Subsidiary Guarantor of Indebtedness Incurred pursuant to paragraph (a) or pursuant to clause (1), (2), (3), (4), (7), (11) or (13) or pursuant to clause (6) to the extent the net proceeds thereof are concurrently deposited to defease all Securities Refinancing Indebtedness Incurred thereunder directly or indirectly Refinances Indebtedness Incurred pursuant to the terms of the Indenture paragraph (a) or all New Notes pursuant to the terms herein;clauses (3) or (4); and
(i13) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, when taken together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to Incurrence (other than Indebtedness permitted by clauses (1) through (12) of this clause (JSection 4.13(b) or Section 4.13(a)), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness50 million.
Appears in 1 contract
Sources: Third Supplemental Indenture (Pioneer Natural Resources Co)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company or a Subsidiary Guarantor may Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto, the Consolidated Coverage Ratio equals or exceeds 2.0 to 11.0.
(2b) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur any or all of The limitation described in Section 4.03(a) shall not prohibit the following Indebtedness:
(a1) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted SubsidiarySubsidiary Guarantor Incurred pursuant to any Credit Facility, other than so long as the aggregate amount of all Indebtedness described outstanding under all Credit Facilities pursuant to this clause (1) does not, at any one time, exceed the greater of (x) $1.75 billion and (y) 30% of ACNTA as of the date of such Incurrence; provided that the limitation set forth in clause (Bx) belowshall be increased by the amount set forth in clause (2) below upon CNX Gas becoming, and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary)for so long as it remains, in each case determined in accordance with GAAPa Subsidiary Guarantor;
(b2) Indebtedness of CNX Gas and its Subsidiaries pursuant to any Credit Facility, so long as the Company owed aggregate amount of all Indebtedness outstanding under all Credit Facilities pursuant to this clause (2) does not, at any one time, exceed the greater of (x) $500.0 million and held by (y) 30% of ACNTA as of the date of such Incurrence; provided that clause (2) shall not be available at such time, if any, that CNX Gas becomes, and remains, a Restricted Subsidiary and Guarantor;
(3) Indebtedness of a Restricted Subsidiary owed to and held by the Company or a any Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereofthereof not permitted by this clause (3) ;
(c4) the Securities (other than any Additional Securities), Subsidiary Guarantees, the 2017 Securities and Guarantees of the 2017 Securities;
(d5) Indebtedness outstanding as of on the date of this Note Issue Date (other than Indebtedness described in clause (A1), (B2), (3) or (C4) of this Section 3(d)(24.03(b));
(e6) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(14.03(a) or pursuant to clause (C4) or (D5) above or this clause (6) of this Section 3(d)(2) or this clause (E4.03(b);
(f7) Hedging Non-recourse Purchase Money Indebtedness and Capital Lease Obligations Incurred by the Company or any Restricted Subsidiary, and Refinancing Indebtedness thereof, in an aggregate amount not to exceed at any time outstanding under this clause (7) the greater of (a) $250.0 million and (b) 5% of Consolidated Net Tangible Assets at the time of any Incurrence under this clause (7);
(8) (i) Guarantees by the Company or any Subsidiary Guarantor of any Indebtedness of the Company or any other Subsidiary Guarantor that is permitted to be Incurred by another provision of this Section 4.03 and could have been Incurred (in compliance with this covenant) by the Person so guaranteeing such Indebtedness; provided, however, that upon any such Subsidiary Guarantor ceasing to be a Subsidiary Guarantor or such Indebtedness being owed to any Person other than the Company or a Subsidiary Guarantor, the Company or such Subsidiary Guarantor, as applicable, shall be deemed to have Incurred Indebtedness not permitted by this clause (8)(i); and (ii) Guarantees by a Restricted Subsidiary that is not a Subsidiary Guarantor of any Indebtedness of the Company or any Restricted Subsidiary;
(9) Indebtedness consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunderIncurred by the Company and its Restricted Subsidiaries pursuant to this Indenture;
(g10) Indebtedness incurred under Hedging Contracts and Currency Agreements entered into in the ordinary course of business for the purpose of limiting risks and not for speculation that arise in the ordinary course of business of the Company and its Restricted Subsidiaries;
(11) Indebtedness in respect of bid, performance or surety obligations issued by or for the account of the Company or any Restricted Subsidiary in the ordinary course of business, including Guarantees and letters of credit functioning as or supporting such bid, performance or surety obligations (in each case other than for an obligation for money borrowed);
(12) Permitted Marketing Obligations;
(13) in-kind obligations relating to oil and gas balancing positions arising in the ordinary course of business;
(14) Indebtedness under the Existing Receivables Financing and the Incurrence by a Receivables Subsidiary, Subsidiary of Indebtedness in a Qualified Receivables Transaction that is without recourse (other than Indebtedness described pursuant to representations, warranties, covenants, indemnities and performance guarantees customarily entered into in clause (Bconnection with a Receivables financing) above, in an amount not exceeding 95% to the Company or to any Restricted Subsidiary of the aggregate unpaid balance of the Receivables and Related Assets of Company or its assets (other than such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;and its subsidiaries and assets); and
(h15) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company any Subsidiary Guarantor in an aggregate principal amount which, together with the amount of all other Indebtedness of the Company and the Subsidiary Guarantors outstanding on the date of such incurrence which was incurred pursuant to Incurrence (other than Indebtedness permitted by clauses (1) through (14) above or Section 4.03(a)) does not exceed the greater of (x) $250.0 million and (y) 5% of Consolidated Net Tangible Assets at the time of any Incurrence under this clause (J15).
(c) For purposes of determining compliance with this Section 4.03, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (1) through (15) of Section 4.03(b) or is entitled to be Incurred pursuant to Section 4.03(a), does not exceed $55,000,000. With respect to the Company shall, in its sole discretion, classify (or later reclassify) such item of Indebtedness permitted under in any manner that complies with this Section 3(d)(2)(J4.03 (including splitting into multiple exceptions) no more than $20,000,000 and will only be required to include the amount and type of such Indebtedness may in one of the clauses of Section 4.03(b) or Section 4.03(a); provided that (i) Indebtedness outstanding under the Credit Agreement as of the Issue Date shall be incurred deemed to have been Incurred pursuant to such provision clause (1) of Section 4.03(b) and shall not be reclassified (except as set forth in respect clause (iii) below), (ii) Indebtedness of Purchase Money IndebtednessCNX Gas under its revolving credit facility outstanding on the date it becomes a Restricted Subsidiary shall be deemed to have been Incurred pursuant to clause (2) of Section 4.03(b) and shall not be reclassified, (iii) Indebtedness of CNX Gas under its revolving credit facility outstanding on the date it becomes a Subsidiary Guarantor shall be deemed to have been Incurred pursuant to clause (1) of Section 4.03(b) and shall not be reclassified.
Appears in 1 contract
Sources: Indenture (CONSOL Energy Inc)
Limitation on Indebtedness. (1a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness (other than the Notes and Indebtedness existing on the Closing Date); provided that the Company or any Restricted Subsidiary tomay Incur Indebtedness (including without limitation, incurAcquired Indebtedness), directly or indirectlyif, any Indebtedness unless, on after giving effect to the date Incurrence of such incurrenceIndebtedness and the receipt and application of the proceeds therefrom, the Consolidated Interest Coverage Ratio exceeds would be greater than 2.0 to 1.
(2b) Notwithstanding the foregoing paragraph (1a), the Company and any Restricted Subsidiary (except as specified below) may Incur each and all of the following:
(i) Indebtedness outstanding at any time in aggregate principal amount not to exceed an amount equal to the greater of (A) $750 million, less any amount of Indebtedness permanently repaid as provided under Section 4.11 and (B) the sum of (1) 90% of the consolidated book value of the accounts receivable (other than accounts receivable subject to a Receivables Program) of the Company and its Restricted Subsidiaries may incur any or all of the following Indebtedness:
plus (a2) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 5060% of the consolidated book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary)Subsidiaries, in each case determined in accordance with GAAP;
(bii) the Senior Notes and the Convertible Notes;
(iii) Indebtedness of (A) to the Company owed to and held evidenced by a promissory note or (B) to any of its Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted SubsidiarySubsidiaries; provided, however, provided that any subsequent issuance or transfer of any Capital Stock event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence an Incurrence of such Indebtedness not permitted by the issuer thereofthis clause (iii);
(c) the Securities;
(div) Indebtedness issued in exchange for, or the net proceeds of which are used to refinance or refund, then outstanding Indebtedness, other than Indebtedness Incurred under clause (i), (iii), (v), (vii) or (viii) of this paragraph (b), and any refinancings thereof in an amount not to exceed the amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses); provided that (A) in case the Indebtedness to be refinanced is pari passu, with, or subordinated in right of payment to, the Notes, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made pari passu, with, or subordinate in right of payment to, the Notes at least to the extent that the Indebtedness to be refinanced is pari passu, with, or subordinated to the Notes and (B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded; and provided further that in no event may Indebtedness of the Company be refinanced by means of any Indebtedness of any Restricted Subsidiary pursuant to this Note (other than Indebtedness described in clause (iv);
(v) Indebtedness (A)) in respect of performance, surety or appeal bonds provided in the ordinary course of business, (B) arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company (C) other than Guarantees of this Section 3(d)(2Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary of the Company for the purpose of financing such acquisition)), in a principal amount not to exceed the gross proceeds actually received by the Company or any Restricted Subsidiary in connection with such disposition;
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(hvi) Indebtedness of the Company and the Company's Restricted Subsidiaries , to the extent the net proceeds thereof are concurrently deposited promptly used to defease all Securities pursuant to the terms of the Indenture or all New purchase Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company tendered in an aggregate principal amount which, together with all other Offer to Purchase made as a result of a Change of Control; provided that any Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J)vi) with respect to the payment of Notes shall not mature prior to the Stated Maturity of the Notes, and shall have an Average Life that is at least equal to the remaining Average Life of the Notes;
(vii) Indebtedness of the Company, to the extent the net proceeds thereof are promptly deposited to defease the Notes pursuant to Article XII hereof;
(viii) Guarantees of Indebtedness of the Company by any Restricted Subsidiary provided the Guarantee of such Indebtedness is permitted by and made in accordance with Section 4.08;
(ix) Indebtedness Incurred in connection with a Tax Abatement Transaction; and
(x) Indebtedness represented by Purchase Money Indebtedness and Capitalized Lease Obligations not to exceed 2.5% of Adjusted Consolidated Net Tangible Assets.
(c) Notwithstanding any other provision of this Section 4.03, the maximum amount of Indebtedness that the Company or a Restricted Subsidiary may Incur pursuant to this Section 4.03 shall not be deemed to be exceeded, with respect to any outstanding Indebtedness, due solely to the result of fluctuations in the exchange rates of currencies.
(d) The U.S. dollar-equivalent principal amount of any Indebtedness denominated in a foreign currency will be calculated based on the relevant currency exchange rate in effect on the date the Indebtedness was Incurred, or first committed, in the case of revolving credit Indebtedness; provided that if any Indebtedness is incurred to refinance Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction will be deemed not to have been exceeded so long as the principal amount of the Indebtedness incurred to refinance such outstanding Indebtedness does not exceed $55,000,000. With respect to the principal amount of such Indebtedness permitted being refinanced.
(e) For purposes of determining any particular amount of Indebtedness under this Section 3(d)(2)(J4.03,
(i) no Indebtedness Incurred under the Existing Credit Facility on the Closing Date shall be treated as Incurred pursuant to clause (i) of paragraph (b) of this Section 4.03;
(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; and
(iii) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.10 shall not be treated as Indebtedness. For purposes of determining compliance with this Section 4.03, in the event that an item of Indebtedness meets the criteria of more than $20,000,000 one of the types of Indebtedness may described in the above clauses (other than Indebtedness referred to in clause (i) of paragraph (e) of this Section 4.03), the Company, in its sole discretion, shall classify such item of Indebtedness and only be incurred pursuant required to include the amount and type of such provision Indebtedness in respect one of Purchase Money Indebtednesssuch clauses.
Appears in 1 contract
Sources: Indenture (Agco Corp /De)
Limitation on Indebtedness. (1a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, incur, directly or indirectly, any Indebtedness unless, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur to, Incur any or all of Indebtedness (other than the following Indebtedness:
(a) Notes and Indebtedness incurred by existing on the Closing Date); provided that the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, thatmay Incur Indebtedness if, after giving effect to any the Incurrence of such incurrenceIndebtedness and the receipt and application of the proceeds thereof, the Consolidated Leverage Ratio would be less than or equal to 7 to 1, for Indebtedness Incurred on or prior to September 30, 1999, or less than or equal to 5 to 1, for Indebtedness Incurred thereafter. Notwithstanding the foregoing, the Company, and (except as specified below) any Restricted Subsidiary, may Incur each and all of the following:
(i) Indebtedness in an aggregate principal amount outstanding or available at any time not to exceed $100 million, less any amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 permanently repaid as provided under Section 4.10;
(less the then outstanding principal amount of ii) Indebtedness arising under any Receivables Program of owed (A) to the Company and evidenced by a promissory note or (B) to any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
(b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, provided that any subsequent issuance or transfer of any Capital Stock event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence an Incurrence of such Indebtedness not permitted by the issuer thereofthis clause (ii);
(c) the Securities;
(diii) Indebtedness issued in exchange for, or the net proceeds of which are used to refinance or refund, then outstanding Indebtedness (other than Indebtedness Incurred under clause (i), (ii), (iv), (vi), (ix), (x) or (xi) of this paragraph) and any refinancings of such new Indebtedness in an amount not to exceed the amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses); provided that Indebtedness the proceeds of which are used to refinance or refund the Notes or Indebtedness that is pari passu in right of payment with, or subordinated in right of payment to, the Notes shall only be permitted under this clause (iii) if (A) in case the Notes are refinanced in part or the Indebtedness to be refinanced is pari passu in right of payment with the Notes, such new Indebtedness, by its terms or by the terms of any agreement of instrument pursuant to which such new Indebtedness is outstanding, is expressly made pari passu in right of payment with, or subordinate in right of payment to the remaining Notes, (B) in case the Indebtedness to be refinanced is subordinated in right of payment to the Notes, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes and (C) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded; and provided further that in no event may Indebtedness of the Company be refinanced by means of any Indebtedness of any Restricted Subsidiary pursuant to this Note (other than Indebtedness described in clause (iii);
(iv) Indebtedness (A)) in respect of performance, surety or appeal bonds provided in the ordinary course of business, (B) under Currency Agreements and Interest Rate Agreements; provided that such agreements (a) are designed solely to protect the Company or its Subsidiaries against fluctuations in foreign currency exchange rates or interest rates and (b) do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder or (C) arising from agreements providing for indemnification, adjustment of this Section 3(d)(2purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in each case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition)), in a principal amount not to exceed the gross proceeds actually received by the Company or any Restricted Subsidiary in connection with such disposition;
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(hv) Indebtedness of the Company and the Company's Restricted Subsidiaries , to the extent the net proceeds thereof are concurrently promptly (A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change of Control or (B) deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms hereinin accordance with Article Eight;
(ivi) Guarantees of the Notes and Guarantees of Indebtedness of the Company by any Restricted Subsidiary, provided the Guarantee of such Indebtedness is permitted by and made in accordance with Section 4.07;
(vii) Indebtedness represented Incurred to finance the cost (including the cost of design, development, acquisition, construction, installation, improvement, transportation or integration) to acquire equipment, inventory or network assets (including acquisitions by guarantees way of a Capitalized Lease and acquisitions of the Capital Stock of a Person that becomes a Restricted Subsidiary to the extent of the Fair Market Value of the equipment, inventory or network assets so acquired) by the Company or a Restricted Subsidiary after the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the IndentureClosing Date;
(jviii) Indebtedness incurred of the Company not to exceed, at any one time outstanding, two times (A) the Net Cash Proceeds received by the Company after the Closing Date as a capital contribution or from the issuance and sale of its Capital Stock (other than Redeemable Stock) to a Person that is not a Subsidiary of the Company, to the extent such Net Cash Proceeds have not been used pursuant to clause (C)(2) of the first paragraph or clause (iii), (iv) or (vi) of the second paragraph of Section 4.04 to make a Restricted Payment and (B) 80% of the Fair Market Value of property (other than cash and cash equivalents) received by the Company after the Closing Date from a contribution of capital or the sale of its Capital Stock (other than Redeemable Stock) to a Person that is not a Subsidiary of the Company, to the extent such capital contribution or sale of Capital Stock has not been used pursuant to clause (iii), (iv) or (ix) of the second paragraph of Section 4.04 to make a Restricted Payment; provided that such Indebtedness does not mature prior to the Stated Maturity of the Notes and has an Average Life longer than the Notes;
(ix) Strategic Subordinated Indebtedness;
(x) Indebtedness Incurred to finance Asset Acquisitions (and refinancings of such Indebtedness) in an aggregate principal amount whichoutstanding at any time not to exceed $50 million, together with all other less the amount of such Indebtedness permanently repaid as provided under Section 4.10; provided that immediately after giving effect to the Incurrence of such Indebtedness and the consummation of such Asset Acquisition, the Company's Consolidated Leverage Ratio would be (A) less than or equal to the Company's Consolidated Leverage Ratio immediately prior to such transactions and (B) less than or equal to 7 to 1; and
(xi) Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect in addition to Indebtedness permitted under clauses (i) through (x) above) in an aggregate principal amount outstanding or available at any time not to exceed $25 million, less any amount of such Indebtedness permanently repaid as provided under Section 4.10.
(b) Notwithstanding any other provision of this Section 3(d)(2)(J4.03, the maximum amount of Indebtedness that the Company or a Restricted Subsidiary may Incur pursuant to this Section 4.03 shall not be deemed to be exceeded due solely to the result of fluctuations in the exchange rates of currencies.
(c) no For purposes of determining any particular amount of Indebtedness under this Section 4.03, (1) Indebtedness Incurred under the Credit Agreement on or prior to the Closing Date shall be treated as Incurred pursuant to clause (i) of the second paragraph of this Section 4.03, (2) 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 and (3) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.09 shall not be treated as Indebtedness. For purposes of determining compliance with this Section 4.03, in the event that an item of Indebtedness meets the criteria of more than $20,000,000 one of the types of Indebtedness described in the above clauses (other than Indebtedness referred to in clause (1) of the preceding sentence), the Company, in its sole discretion, may be incurred pursuant to classify such provision item of Indebtedness in respect one or more of Purchase Money Indebtednesssuch clauses.
Appears in 1 contract
Sources: Indenture (Bti Telecom Corp)
Limitation on Indebtedness. (1a) The Unless and until the Termination and Release shall have occurred, the Company shall not, and shall not permit any Restricted Subsidiary to, incur, directly or indirectly, Incur any Indebtedness unless, (not including the Securities (including any agreement pursuant to which the Securities are issued) and Indebtedness existing (or for which a written commitment has been made and a copy of which has been delivered to the Trustee on or prior to the Closing Date) on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1Closing Date), ; provided that the Company and its Restricted Subsidiaries may incur any or all of the following Indebtedness:
(a) Indebtedness incurred by the Company pursuant to the Credit Facility or any Restricted Subsidiary (other revolving credit arrangement; provided, however, thatthan a Guarantor and Palm Shipping) may Incur Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Company would be greater than 2:1. Notwithstanding the foregoing, the Company or any Restricted Subsidiary (other than a Guarantor or Palm Shipping, except as provided in clause (vii) below) also may Incur each and all of the following: (i) Indebtedness in an aggregate principal amount such incurrence, that the aggregate principal amount of such the Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of outstanding immediately after such Incurrence does not exceed the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
(b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence of such Indebtedness by the issuer thereof;
(c) the Securities;
(d) Indebtedness outstanding as of the date of this Note (other than Indebtedness described in clause (A), (B) or (C) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount whichof Indebtedness existing (or for which a written commitment has been made and a copy of which has been delivered to the Trustee on or prior to the Closing Date) on the Closing Date, together with all other Indebtedness after giving effect to the issuance of the Company outstanding on Securities and the date application of such incurrence which was incurred pursuant to this clause (J)the proceeds therefrom, does not exceed plus $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.50 million; 47 56
Appears in 1 contract
Sources: Indenture (Teekay Shipping Corp)
Limitation on Indebtedness. (1a) The Company shall -------------------------- will not, and shall will not permit any Restricted Subsidiary to, incur, directly or indirectly, any Indebtedness unless, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur to, Incur any or all of Indebtedness (other than the following Indebtedness:
(a) Notes and Indebtedness incurred by existing on the Closing Date); provided that the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, thatmay Incur Indebtedness if, after giving effect to any such incurrence, the aggregate principal amount Incurrence of such Indebtedness then outstanding does not exceed and the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program receipt and application of the Company or any Restricted Subsidiaryproceeds therefrom, other the Consolidated Leverage Ratio would be greater than Indebtedness described in clause (B) below) zero and less than 6:1. Notwithstanding the sum of (i) 50% of the book value of the inventory of foregoing, the Company and its any Restricted Subsidiaries Subsidiary (except as specified below) may Incur each and (ii) 85% all of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;following:
(bi) Indebtedness of the Company owed or its Restricted Subsidiaries outstanding at any time in an aggregate principal amount not to exceed (A) $200 million of unsubordinated Indebtedness (including any Indebtedness under one or more revolving credit or working capital facilities) and held (B) $200 million of subordinated Indebtedness (and any Guarantees thereof by the Company or its Restricted Subsidiaries), less any amount of such Indebtedness permanently repaid as provided under Section 4.11 hereof;
(ii) the Incurrence by the Company of Indebtedness represented by the Notes;
(iii) Indebtedness in existence on the Closing Date;
(iv) Indebtedness of the Company to a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a another Restricted Subsidiary; providedprovided that such Indebtedness is made pursuant to an intercompany note (which, howeverin the case of Indebtedness owed to the Company, that shall be unsubordinated) and any subsequent issuance or transfer of any Capital Stock event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence an Incurrence of such Indebtedness not permitted by the issuer thereofthis clause (iv);
(c) the Securities;
(dv) Indebtedness issued in exchange for, or the net proceeds of which are used to refinance or refund, then outstanding Indebtedness (other than Indebtedness Incurred under clause (i), (iv), (vi) or (viii) of this paragraph) and any refinancings thereof in an amount not to exceed the amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses); provided that Indebtedness the proceeds of which are used to refinance or refund Indebtedness that is subordinated in right of payment to the Notes shall only be permitted under this clause (v) if (A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes and (B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded; and provided further that in no event may Indebtedness of the Company be refinanced by means of any Indebtedness of any Restricted Subsidiary pursuant to this Note (other than Indebtedness described in clause (v);
(vi) Indebtedness (A)) in respect of performance, surety or appeal bonds provided in the ordinary course of business, (B) under Currency Agreements and Interest Rate Agreements; provided that such agreements (a) are designed solely to protect the Company or its Restricted Subsidiaries against fluctuations in foreign currency exchange rates or interest rates and (b) do not increase the Indebtedness of the obligor outstanding at any time (except to the extent Incurred under another clause hereof) other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder; and (C) arising from agreements providing for indemnification, adjustment of this Section 3(d)(2purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in each case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition)), in a principal amount not to exceed the gross proceeds actually received by the Company or any Restricted Subsidiary in connection with such disposition;
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(hvii) Indebtedness of the Company and the Company's Restricted Subsidiaries , to the extent the net proceeds thereof are concurrently promptly (A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change in Control or (B) deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms hereinas described below under Article Eight hereof;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.
Appears in 1 contract
Sources: Indenture (Icg Services Inc)
Limitation on Indebtedness. (1a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, incurIncur any Indebtedness; provided, directly however, that the Company or indirectly, any Restricted Subsidiary may Incur Indebtedness unless, if on the date of the Incurrence of such incurrenceIndebtedness, after giving effect to the Incurrence thereof, the Consolidated Coverage Ratio exceeds 2.0 would be equal to 1or greater than 2.00:1.00.
(2b) Notwithstanding the foregoing paragraph (1Section 407(a), the Company and its Restricted Subsidiaries may incur any or all of Incur the following Indebtedness:
(ai) Indebtedness incurred by the Company Incurred pursuant to the any Credit Facility (including, but not limited to, in respect of letters of credit or any bankers’ acceptances issued or created thereunder) and Indebtedness Incurred other revolving credit arrangement; provided, however, that, after giving effect than pursuant to any such incurrenceCredit Facility, and (without limiting the foregoing), in each case, any Refinancing Indebtedness in respect thereof, in a maximum principal amount at any time outstanding not exceeding in the aggregate the amount equal to (A) $4,795.0 million, plus (B) the amount equal to the greater of (x) $1,000.0 million and (y) an amount equal to (1) the Borrowing Base less (2) the aggregate principal amount of such Indebtedness Incurred by Special Purpose Entities that are Restricted Subsidiaries and then outstanding does not exceed pursuant to clause (ix) of this paragraph (b), plus (C) in the greater event of $175,000,000 (less any refinancing of any such Indebtedness, the then outstanding principal aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing;
(ii) Indebtedness arising under (A) of any Receivables Program Restricted Subsidiary to the Company, or (B) of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject Subsidiary to any Receivables Program of the Company or any Restricted Subsidiary; provided that, in the case of this Section 407(b)(ii), in each case determined in accordance with GAAP;
(b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (other than except to the Company or a Restricted Subsidiary) shall will be deemed, in each case, to constitute the incurrence an Incurrence of such Indebtedness by the issuer thereofthereof not permitted by this Section 407(b)(ii);
(ciii) Indebtedness represented by the SecuritiesNotes (other than Additional Notes), any Indebtedness (other than the Indebtedness under the Senior Credit Facilities described in Section 407(b)(i)) outstanding (or Incurred pursuant to any commitment outstanding) on the Issue Date and any Refinancing Indebtedness Incurred in respect of any Indebtedness described in this Section 407(b)(iii) or Section 407(a);
(div) Purchase Money Obligations, Capitalized Lease Obligations, and, in each case, any Refinancing Indebtedness with respect thereto; provided that the aggregate principal amount of such Purchase Money Obligations Incurred to finance the acquisition of Capital Stock of any Person at any time outstanding pursuant to this clause shall not exceed an amount equal to the greater of $325.0 million and 25.0% of Four Quarter Consolidated EBITDA;
(v) Indebtedness outstanding as (A) supported by a letter of credit issued pursuant to any Credit Facility in a principal amount not exceeding the face amount of such letter of credit or (B) consisting of accommodation guarantees for the benefit of trade creditors of the date Company or any of this Note its Restricted Subsidiaries;
(vi) (A) Guarantees by the Company or any Restricted Subsidiary of Indebtedness or any other obligation or liability of the Company or any Restricted Subsidiary (other than any Indebtedness described Incurred by the Company or such Restricted Subsidiary, as the case may be, in clause violation of this Section 407), or (B) without limiting Section 413, Indebtedness of the Company or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to such Person securing Indebtedness of the Company or any Restricted Subsidiary (other than any Indebtedness Incurred by the Company or such Restricted Subsidiary, as the case may be, in violation of this Section 407);
(vii) Indebtedness of the Company or any Restricted Subsidiary (A) arising from the honoring of a check, draft or similar instrument of such Person drawn against insufficient funds in the ordinary course of business, or (B) consisting of guarantees, indemnities, obligations in respect of earnouts or other purchase price adjustments, or similar obligations, Incurred in connection with the acquisition or disposition of any business, assets or Person;
(viii) Indebtedness of the Company or any Restricted Subsidiary in respect of (A) letters of credit, bankers’ acceptances or other similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), (B) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to liabilities or obligations incurred, in the ordinary course of business, (C) Hedging Obligations entered into for bona fide hedging purposes, (D) Management Guarantees or Management Indebtedness, (E) the financing of insurance premiums in the ordinary course of business, (F) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, (G) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Company or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement or (H) Bank Products Obligations;
(ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition or (B) otherwise Incurred in connection with a Special Purpose Financing; provided that (1) such Indebtedness is not recourse to the Company or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings); (2) in the event such Indebtedness shall become recourse to the Company or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by the Company as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this Section 3(d)(2407 for so long as such Indebtedness shall be so recourse; and (3) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), the Company may classify such Indebtedness in whole or in part as Incurred under this Section 407(b)(ix);
(ex) Refinancing Indebtedness of (A) the Company or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in respect connection with, any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Company or any Restricted Subsidiary, or (B) any Person that is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary (including Indebtedness incurred thereof Incurred in connection with any such acquisition, merger or consolidation), provided that on the date of such acquisition, merger or consolidation, after giving effect thereto, either (1) the Company could Incur at least $1.00 of additional Indebtedness pursuant to Section 3(d)(1) or pursuant to clause (C407(a) or (D2) the Consolidated Coverage Ratio of this Section 3(d)(2) the Company would equal or this clause (E)exceed the Consolidated Coverage Ratio of the Company immediately prior to giving effect thereto; and any Refinancing Indebtedness with respect to any such Indebtedness;
(fxi) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Contribution Indebtedness permitted to be incurred hereunderand any Refinancing Indebtedness with respect thereto;
(gxii) Indebtedness incurred by a Receivables Subsidiaryissuable upon the conversion or exchange of shares of Disqualified Stock issued in accordance with Section 407(a), other than and any Refinancing Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Programwith respect thereto;
(hxiii) Indebtedness of the Company and the Company's or any Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company Subsidiary in an aggregate principal amount which, together with all other at any time outstanding not exceeding an amount equal to the greater of $775.0 million and 60.0% of Four Quarter Consolidated EBITDA;
(xiv) (A) Indebtedness of the Company or any Restricted Subsidiary to any Related Corporation, incurred consistent with past practices on or prior to the Issue Date or in the ordinary course of business, pursuant to or in connection with Related Corporation Contracts, (B) Guarantees by the Company or any Restricted Subsidiary of Indebtedness or any other obligation or liability of any Related Corporation, incurred consistent with past practices on or prior to the Issue Date or in the ordinary course of business, pursuant to or in connection with Related Corporation Contracts, (C) without limiting Section 407, Indebtedness of the Company or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to such Person securing Indebtedness of any Related Corporation, incurred consistent with past practices on or prior to the Issue Date or in the ordinary course of business, pursuant to or in connection with Related Corporation Contracts, and (D) Indebtedness of the Company or any Restricted Subsidiary in respect of letters of credit, banker’s acceptances or other similar instruments or obligations, issued, or relating to liabilities or obligations incurred on behalf of any Related Corporation, incurred consistent with past practices on or prior to the Issue Date or in the ordinary course of business, pursuant to or in connection with Related Corporation Contracts; and
(xv) Indebtedness representing Guarantees of Indebtedness of partnerships or joint ventures of the Company or of any of its Restricted Subsidiaries in an aggregate amount, when added to all other Indebtedness Incurred pursuant to this clause (xv) and then outstanding, not to exceed the greater of $260.0 million and 20.0% of Four Quarter Consolidated EBITDA.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 407, (i) any other obligation of the obligor on such Indebtedness (or of any other Person who could have Incurred such Indebtedness under this Section 407) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness; (ii) in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in Section 407(b), the Company, in its sole discretion, shall classify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of the clauses of Section 407(b) (including in part under one such clause and in part under another such clause); provided that (if the Company shall so determine) any Indebtedness Incurred pursuant to Section 407(b)(xiii) shall cease to be deemed Incurred or outstanding for purposes of such clause but shall be deemed Incurred for the purposes of Section 407(a) from and after the first date on which the Company or any Restricted Subsidiary could have Incurred such Indebtedness under Section 407(a) without reliance on such clause; (iii) in the event that Indebtedness could be Incurred in part under Section 407(a), the Company, in its sole discretion, may classify a portion of such Indebtedness as having been Incurred under Section 407(a) and the remainder of such Indebtedness as having been Incurred under Section 407(b); (iv) the amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP; (v) the principal amount of Indebtedness outstanding under any clause of Section 407(b) shall be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness; (vi) if any Indebtedness is Incurred to refinance Indebtedness initially Incurred (or, Indebtedness Incurred to refinance Indebtedness initially Incurred) in reliance on a basket measured by reference to a percentage of Four Quarter Consolidated EBITDA at the time of Incurrence, and such refinancing would cause the percentage of Four Quarter Consolidated EBITDA restriction to be exceeded if calculated based on the Four Quarter Consolidated EBITDA on the date of such incurrence which was incurred pursuant refinancing, such percentage of Four Quarter Consolidated EBITDA restriction shall not be deemed to this clause be exceeded (J), and such refinancing Indebtedness shall be deemed permitted) so long as the principal amount of such refinancing Indebtedness does not exceed $55,000,000the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing; and (vii) if any Indebtedness is Incurred to refinance Indebtedness initially Incurred (or, Indebtedness Incurred to refinance Indebtedness initially Incurred) in reliance on any provision of Section 407(b) measured by a dollar amount, such dollar amount shall not be deemed to be exceeded (and such refinancing Indebtedness shall be deemed permitted) to the extent the principal amount of such newly Incurred Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing. With respect Notwithstanding anything herein to the contrary, Indebtedness permitted Outstanding on the Issue Date under this the Senior Credit Facilities shall be classified as Incurred under Section 3(d)(2)(J407(b), and not under Section 407(a).
(d) no more than $20,000,000 For purposes of determining compliance with any dollar denominated restriction on the Incurrence of Indebtedness may denominated in a foreign currency, the dollar equivalent principal amount of such Indebtedness Incurred pursuant thereto shall be incurred calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving or deferred draw Indebtedness, provided that (x) the dollar equivalent principal amount of any such Indebtedness outstanding on the Issue Date shall be calculated based on the relevant currency exchange rate in effect on the Issue Date, (y) if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency (or in a different currency from such Indebtedness so being Incurred), and such refinancing would cause the applicable dollar denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such dollar denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (i) the outstanding or committed principal amount (whichever is higher) of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing and (z) the dollar equivalent principal amount of Indebtedness denominated in a foreign currency and Incurred pursuant to the Senior Credit Facilities shall be calculated based on the relevant currency exchange rate in effect on, at the Company’s option, (A) the Issue Date, (B) any date on which any of the respective commitments under the applicable Senior Credit Facilities shall be reallocated between or among facilities or subfacilities thereunder, or on which such provision rate is otherwise calculated for any purpose thereunder, or (C) the date of such Incurrence. The principal amount of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in respect of Purchase Money Indebtedness.a different currency from the Indebtedness be
Appears in 1 contract
Sources: Indenture (Envision Healthcare Corp)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company and its Restricted Subsidiaries shall be entitled to Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto on a pro forma basis, no Default has occurred and is continuing and the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2b) Notwithstanding the foregoing paragraph (1a), so long as no Default has occurred and is continuing, the Company and its the Restricted Subsidiaries may incur shall be entitled to Incur any or all of the following Indebtedness:
(a1) Indebtedness incurred by the Company Incurred pursuant to the Credit Facility Facility, including any amendment, modification, supplement, extension, restatement, replacement (including replacement after the termination of such Credit Facility), restructuring, increase, renewal, or any other revolving credit arrangementRefinancing thereof from time to time in one or more agreements or instruments; provided, however, that, after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of (i) $175,000,000 (675.0 million less the then outstanding sum of all principal amount of payments since April 11, 2000, with respect to such Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) belowpursuant to Section 4.16(a)(3)(A) and (ii) the sum of (ix) 50$100 million and (y) 20% of the book value Adjusted Consolidated Net Tangible Assets determined as of the inventory date of the Company and its Restricted Subsidiaries and (ii) 85% Incurrence of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPsuch Indebtedness;
(b2) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereofobligor thereon;
(c3) the Debt Securities;
(d4) Indebtedness outstanding as of the date of this Note on April 11, 2000 (other than Indebtedness described in clause (A1), (B2) or (C3) of this Section 3(d)(24.13(b));
(e5) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Subsidiary was acquired by the Company (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by the Company);
(6) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(14.13(a) or pursuant to clause (C3), (4) or (D5) of this Section 3(d)(24.13(b) or Schedule III - 1 this clause (E6); provided, however, that to the extent such Refinancing Indebtedness directly or indirectly Refinances Indebtedness of a Subsidiary Incurred pursuant to clause (5), such Refinancing Indebtedness shall be Incurred only by such Subsidiary;
(f7) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunderIncurred by the Company pursuant to this Indenture;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program8) Non-Recourse Indebtedness;
(h9) Indebtedness in respect of bid, performance, reimbursement or surety obligations issued by or for the account of the Company or any Restricted Subsidiary in the ordinary course of business, including Guarantees and letters of credit functioning as or supporting such bid, performance, reimbursement or surety obligations (in each case other than for an obligation for money borrowed);
(10) Indebtedness consisting of obligations in respect of purchase price adjustments, indemnities or Guarantees of the same or similar matters in connection with the acquisition or disposition of Property;
(11) Indebtedness under Commodity Price Protection Agreements and Currency Exchange Protection Agreements entered into in the ordinary course of business for the purpose of limiting risks that arise in the ordinary course of business of the Company and its Restricted Subsidiaries;
(12) Indebtedness consisting of the Company's Restricted Subsidiaries Subsidiary Guarantee of the Guarantor (including any reinstatement of such Subsidiary Guarantee) and any Subsidiary Guarantee by the Company or a Subsidiary Guarantor of Indebtedness Incurred pursuant to paragraph (a) or pursuant to clause (1), (2), (3), (4), (7), (11) or (13) or pursuant to clause (6) to the extent the net proceeds thereof are concurrently deposited to defease all Securities Refinancing Indebtedness Incurred thereunder directly or indirectly Refinances Indebtedness Incurred pursuant to the terms of the Indenture paragraph (a) or all New Notes pursuant to the terms herein;clauses (3) or (4); and
(i13) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, when taken together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to Incurrence (other than Indebtedness permitted by clauses (1) through (12) of this clause (JSection 4.13(b) or Section 4.13(a)), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness50 million.
Appears in 1 contract
Sources: Third Supplemental Indenture (Pioneer Natural Resources Co)
Limitation on Indebtedness. (1a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, create, incur, directly assume, guarantee or indirectlyotherwise become liable with respect to, or become responsible for the payment of, any Indebtedness unless, on the date of such incurrenceafter giving effect thereto, the Consolidated Fixed Charge Coverage Ratio exceeds 2.0 of the Company is greater than 1.9 to 1.
(2b) Notwithstanding the foregoing paragraph (1)foregoing, the Company and its Restricted Subsidiaries may incur incur, create, assume, guarantee or otherwise become liable with respect to any or all of the following Indebtedness:
(a) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of following: (i) 50Indebtedness not otherwise permitted pursuant to clauses (ii) through (xi) below in an aggregate amount at any time outstanding of up to $20,000,000; (ii) Indebtedness evidenced by the Initial Notes (and any Exchange Notes issued in respect thereof), the 11% of Notes or the book value of the inventory 13 3/4% Notes; (iii) Indebtedness of the Company and its Restricted Subsidiaries and (ii) 85% remaining outstanding immediately after the issuance of the book value Initial Notes and application of the accounts receivable of proceeds thereof; (iv) Indebtedness to the Company and its or to a Restricted Subsidiaries Subsidiary; (other than accounts receivable subject v) Indebtedness incurred by the Company or any Restricted Subsidiary in connection with (a) the construction of any new facility or facilities related to the gaming business or any Receivables Program related business of the Company or any Restricted Subsidiary), Subsidiary or in each case determined in accordance connection with GAAP;
(b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held expansion by the Company or a any Restricted SubsidiarySubsidiary of any of its existing facilities; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence of such Indebtedness by the issuer thereof;
(c) the Securities;
(d) Indebtedness outstanding as of the date of this Note (other than Indebtedness described in clause (A), (B) or (C) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.82 75
Appears in 1 contract
Sources: Indenture (Aztar Corp)
Limitation on Indebtedness. (1) The Company Companies shall not, and shall not suffer or permit any Restricted Subsidiary to, create, incur, assume, suffer to exist, or otherwise become or remain directly or indirectlyindirectly liable with respect to, any Indebtedness unlessIndebtedness, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur any or all of the following Indebtednessexcept:
(a) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPthis Agreement;
(b) Indebtedness of existing on the Company owed to Closing Date and held by a Restricted Subsidiary set forth in Schedule 8.05(b) and Indebtedness of a Restricted Subsidiary owed to any extensions and held by the Company or a Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer renewals of such Indebtedness (other than on terms otherwise permitted pursuant to this Agreement, so long as the Company or a Restricted Subsidiary) shall be deemedprincipal amount is not increased, in each case, to constitute the incurrence of such additional collateral is not given and unsecured Indebtedness by the issuer thereofis not made secured Indebtedness;
(c) the SecuritiesIndebtedness secured by Liens permitted by Section 8.01(j) in an aggregate amount outstanding not to exceed $10,000,000;
(d) Indebtedness outstanding as owing by any Company to any other Company that is not otherwise prohibited by this Agreement or any of the date of this Note (other than Indebtedness described in clause (A), (B) or (C) of this Section 3(d)(2))Loan Documents;
(e) Refinancing Indebtedness in respect arising as a consequence of Indebtedness incurred Investments permitted pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E8.04(d);; and
(f) Hedging Obligations consisting Indebtedness owing by a Subsidiary of Interest Rate ▇▇▇▇▇▇▇▇▇ that is not a Company to a Person other than ▇▇▇▇▇▇▇▇▇ or Currency Protection Agreements directly related any Subsidiary of ▇▇▇▇▇▇▇▇▇ provided that the aggregate amount of all such Indebtedness outstanding at any time does not exceed 25% of Consolidated Net Worth as set forth in ▇▇▇▇▇▇▇▇▇'▇ quarterly or annual consolidated financial statements most recently delivered to Indebtedness permitted the Agent pursuant to be incurred hereunder;Section 7.01.
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence otherwise permitted pursuant to a Receivables Program;
subsection (ha) Indebtedness through (f) of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
this Section, if (i) such Indebtedness represented is incurred or arises with respect to a transaction not otherwise prohibited by guarantees by this Agreement and (ii) immediately upon becoming obligated with respect to such Indebtedness, the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does Leverage Ratio would not exceed $55,000,000. With respect 0.60 to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness1.00.
Appears in 1 contract
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, incur, directly or indirectly, Incur any Indebtedness, including, without limitation, any Acquired Indebtedness unless, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1(other than Permitted Indebtedness).
(2b) Notwithstanding the foregoing paragraph (1)limitations, in addition to Permitted Indebtedness, the Company may Incur Indebtedness (including, without limitation, Acquired Indebtedness) and its Restricted Subsidiaries may incur any or all of the following Indebtedness:
(a) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
(b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemedmay Incur Acquired Indebtedness, in each case, to constitute if (i) no Default or Event of Default shall have occurred and be continuing on the incurrence date of the proposed Incurrence thereof or would result as a consequence of such proposed Incurrence and (ii) immediately after giving effect to such proposed Incurrence, (x) the Consolidated Fixed Charge Coverage Ratio of the Company is at least equal to 2.0 to 1.0 if such proposed Incurrence is on or prior to December 31, 1998 at least equal to 2.5 to 1.0 if such proposed Incurrence is after December 31, 1998 and on or prior to December 31, 1999, and at least equal to 2.75 to 1.0 if such proposed Incurrence occurs after December 31, 1999 and (y) the Adjusted Consolidated Net Tangible Assets of the Company are at least equal to 150% of the aggregate consolidated Indebtedness by of the issuer thereof;Company.
(c) the Securities;
(d) Indebtedness outstanding as of the date of this Note (other than Indebtedness described in clause (A)The Company will not, (B) directly or (C) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) aboveindirectly, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
any event Incur any Indebtedness which by its terms (h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to or by the terms of the Indenture or all New Notes pursuant any agreement governing such Indebtedness) is subordinated to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all any other Indebtedness of the Company outstanding on ranking pari passu with the date Notes unless such Indebtedness is also by its terms (or by the terms of any agreement governing such incurrence which was incurred Indebtedness) made expressly subordinate to the Notes to the same extent and in the same manner as such Indebtedness is subordinated to such pari passu Indebtedness pursuant to this clause (J), does not exceed $55,000,000. With respect any subordination provisions that are most favorable to the holders of any such pari passu Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtednessthe Company.
Appears in 1 contract
Sources: Indenture (Royal Oak Mines Inc)
Limitation on Indebtedness. (1a) The -------------------------- Company shall will not, and shall will not permit any Restricted Subsidiary to, incur, directly or indirectly, any Indebtedness unless, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries to, Incur any Indebtedness (other than the Notes and Indebtedness existing on the Closing Date); provided that the -------- Company may incur any or all of the following Indebtedness:
(a) Incur Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, thatif, after giving effect to any such incurrence, the aggregate principal amount Incurrence of such Indebtedness then outstanding does not exceed and the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program receipt and application of the Company or any Restricted Subsidiaryproceeds therefrom, other the Consolidated Leverage Ratio would be greater than Indebtedness described in clause (B) below) zero and less than 6:1. Notwithstanding the sum of (i) 50% of the book value of the inventory of foregoing, the Company and its any Restricted Subsidiaries Subsidiary (except as specified below) may Incur each and (ii) 85% all of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;following:
(bi) Indebtedness of the Company owed or its Restricted Subsidiaries outstanding at any time in an aggregate principal amount not to exceed (A) $200 million of unsubordinated Indebtedness (including any Indebtedness under one or more revolving credit or working capital facilities) and held (B) $200 million of subordinated Indebtedness (and any Guarantees thereof by the Company or its Restricted Subsidiaries), less any amount of such Indebtedness permanently repaid as provided under Section 4.11 hereof;
(ii) the Incurrence by the Company of Indebtedness represented by the Notes;
(iii) Indebtedness in existence on the Closing Date;
(iv) Indebtedness of the Company to a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a another Restricted Subsidiary; providedprovided that -------- such Indebtedness is made pursuant to an intercompany note (which, howeverin the case of Indebtedness owed to the Company, that shall be unsubordinated) and any subsequent issuance or transfer of any Capital Stock event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence an Incurrence of such Indebtedness not permitted by the issuer thereofthis clause (iv);
(c) the Securities;
(dv) Indebtedness issued in exchange for, or the net proceeds of which are used to refinance or refund, then outstanding Indebtedness (other than Indebtedness Incurred under clause (i), (iv), (vi) or (viii) of this paragraph) and any refinancings thereof in an amount not to exceed the amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses); provided that Indebtedness the -------- proceeds of which are used to refinance or refund Indebtedness that is subordinated in right of payment to the Notes shall only be permitted under this clause (v) if (A) such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes and (B) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded; and provided further that in no -------- ------- event may Indebtedness of the Company be refinanced by means of any Indebtedness of any Restricted Subsidiary pursuant to this Note (other than Indebtedness described in clause (v);
(vi) Indebtedness (A)) in respect of performance, surety or appeal bonds provided in the ordinary course of business, (B) under Currency Agreements and Interest Rate Agreements; provided that such agreements (a) are designed -------- solely to protect the Company or its Restricted Subsidiaries against fluctuations in foreign currency exchange rates or interest rates and (b) do not increase the Indebtedness of the obligor outstanding at any time (except to the extent Incurred under another clause hereof) other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder; and (C) arising from agreements providing for indemnification, adjustment of this Section 3(d)(2purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in each case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition)), in a principal amount not to exceed the gross proceeds actually received by the Company or any Restricted Subsidiary in connection with such disposition;
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(hvii) Indebtedness of the Company and the Company's Restricted Subsidiaries , to the extent the net proceeds thereof are concurrently promptly (A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change in Control or (B) deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms hereinas described below under Article Eight hereof;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.
Appears in 1 contract
Sources: Indenture (Icg Services Inc)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company or a Subsidiary Guarantor may Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto, the Consolidated Coverage Ratio equals or exceeds 2.0 to 11.0.
(2b) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur any or all of The limitation described in Section 4.03(a) shall not prohibit the following Indebtedness:
(a1) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted SubsidiarySubsidiary Guarantor Incurred pursuant to any Credit Facility, other than so long as the aggregate amount of all Indebtedness described outstanding under all Credit Facilities pursuant to this clause (1) does not, at any one time, exceed the greater of (x) $1.75 billion and (y) 30% of ACNTA as of the date of such Incurrence; provided that the limitation set forth in clause (Bx) belowshall be increased by the amount set forth in clause (2) below upon CNX Gas becoming, and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary)for so long as it remains, in each case determined in accordance with GAAPa Subsidiary Guarantor;
(b2) Indebtedness of CNX Gas and its Subsidiaries pursuant to any Credit Facility, so long as the Company owed aggregate amount of all Indebtedness outstanding under all Credit Facilities pursuant to this clause (2) does not, at any one time, exceed the greater of (x) $500.0 million and held by (y) 30% of ACNTA as of the date of such Incurrence; provided that clause (2) shall not be available at such time, if any, that CNX Gas becomes, and remains, a Restricted Subsidiary and Guarantor;
(3) Indebtedness of a Restricted Subsidiary owed to and held by the Company or a any Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereofthereof not permitted by this clause (3) ;
(c4) the Securities (other than any Additional Securities), Subsidiary Guarantees, the 2020 Securities and Guarantees of the 2020 Securities;
(d5) Indebtedness outstanding as of on the date of this Note Issue Date (other than Indebtedness described in clause (A1), (B2), (3) or (C4) of this Section 3(d)(24.03(b));
(e6) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(14.03(a) or pursuant to clause (C4) or (D5) above or this clause (6) of this Section 3(d)(2) or this clause (E4.03(b);
(f7) Hedging Non-recourse Purchase Money Indebtedness and Capital Lease Obligations Incurred by the Company or any Restricted Subsidiary, and Refinancing Indebtedness thereof, in an aggregate amount not to exceed at any time outstanding under this clause (7) the greater of (a) $250.0 million and (b) 5% of Consolidated Net Tangible Assets at the time of any Incurrence under this clause (7);
(8) (i) Guarantees by the Company or any Subsidiary Guarantor of any Indebtedness of the Company or any other Subsidiary Guarantor that is permitted to be Incurred by another provision of this Section 4.03 and could have been Incurred (in compliance with this covenant) by the Person so guaranteeing such Indebtedness; provided, however, that upon any such Subsidiary Guarantor ceasing to be a Subsidiary Guarantor or such Indebtedness being owed to any Person other than the Company or a Subsidiary Guarantor, the Company or such Subsidiary Guarantor, as applicable, shall be deemed to have Incurred Indebtedness not permitted by this clause (8)(i); and (ii) Guarantees by a Restricted Subsidiary that is not a Subsidiary Guarantor of any Indebtedness of the Company or any Restricted Subsidiary;
(9) Indebtedness consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunderIncurred by the Company and its Restricted Subsidiaries pursuant to this Indenture;
(g10) Indebtedness incurred under Hedging Contracts and Currency Agreements entered into in the ordinary course of business for the purpose of limiting risks and not for speculation that arise in the ordinary course of business of the Company and its Restricted Subsidiaries;
(11) Indebtedness in respect of bid, performance or surety obligations issued by or for the account of the Company or any Restricted Subsidiary in the ordinary course of business, including Guarantees and letters of credit functioning as or supporting such bid, performance or surety obligations (in each case other than for an obligation for money borrowed);
(12) Permitted Marketing Obligations;
(13) in-kind obligations relating to oil and gas balancing positions arising in the ordinary course of business;
(14) Indebtedness under the Existing Receivables Financing and the Incurrence by a Receivables Subsidiary, Subsidiary of Indebtedness in a Qualified Receivables Transaction that is without recourse (other than Indebtedness described pursuant to representations, warranties, covenants, indemnities and performance guarantees customarily entered into in clause (Bconnection with a Receivables financing) above, in an amount not exceeding 95% to the Company or to any Restricted Subsidiary of the aggregate unpaid balance of the Receivables and Related Assets of Company or its assets (other than such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;and its subsidiaries and assets); and
(h15) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company any Subsidiary Guarantor in an aggregate principal amount which, together with the amount of all other Indebtedness of the Company and the Subsidiary Guarantors outstanding on the date of such incurrence which was incurred pursuant to Incurrence (other than Indebtedness permitted by clauses (1) through (14) above or Section 4.03(a)) does not exceed the greater of (x) $250.0 million and (y) 5% of Consolidated Net Tangible Assets at the time of any Incurrence under this clause (J15).
(c) For purposes of determining compliance with this Section 4.03, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (1) through (15) of Section 4.03(b) or is entitled to be Incurred pursuant to Section 4.03(a), does not exceed $55,000,000. With respect to the Company shall, in its sole discretion, classify (or later reclassify) such item of Indebtedness permitted under in any manner that complies with this Section 3(d)(2)(J4.03 (including splitting into multiple exceptions) no more than $20,000,000 and will only be required to include the amount and type of such Indebtedness may in one of the clauses of Section 4.03(b) or Section 4.03(a); provided that (i) Indebtedness outstanding under the Credit Agreement as of the Issue Date shall be incurred deemed to have been Incurred pursuant to such provision clause (1) of Section 4.03(b) and shall not be reclassified (except as set forth in respect clause (iii) below), (ii) Indebtedness of Purchase Money IndebtednessCNX Gas under its revolving credit facility outstanding on the date it becomes a Restricted Subsidiary shall be deemed to have been Incurred pursuant to clause (2) of Section 4.03(b) and shall not be reclassified, (iii) Indebtedness of CNX Gas under its revolving credit facility outstanding on the date it becomes a Subsidiary Guarantor shall be deemed to have been Incurred pursuant to clause (1) of Section 4.03(b) and shall not be reclassified.
Appears in 1 contract
Sources: Indenture (CONSOL Energy Inc)
Limitation on Indebtedness. (1a) The Company shall not, and shall will not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness unless, on the date of such incurrenceIncurrence and after giving effect to such Incurrence and the application of the net proceeds therefrom, the Consolidated Coverage Ratio exceeds 2.0 to 1would exceed 2.00:1.
(2b) Notwithstanding the foregoing paragraph (1a), the Company and its Restricted Subsidiaries may incur Incur any or all of the following Indebtedness:
: (ai) Indebtedness incurred by of the Company pursuant to Incurred under the revolving credit provisions of the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the Agreement in an aggregate principal amount of such Indebtedness then outstanding does at any time not to exceed the greater of (A) $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause 100.0 million and (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii1) 85% of the gross book value of the accounts receivable of the Company and its Restricted Subsidiaries and (other than accounts receivable subject to any Receivables Program 2) 50% of the gross book value of the inventory of the Company or any and its Restricted Subsidiary), Subsidiaries; provided that the amount in each case determined in accordance with GAAP;
clause (bA) shall be reduced by the aggregate amount of all proceeds from all Asset Dispositions that have been applied since the Issue Date to permanently reduce the outstanding amount of such Indebtedness pursuant to Section 4.7; (ii) Indebtedness of the Company owed Incurred under the term loan provisions of the Credit Agreement in an aggregate principal amount outstanding at any time not to exceed $200.0 million, less the aggregate amount of all proceeds from all Asset Dispositions
(vii) Refinancing Indebtedness Incurred in respect of any Indebtedness Incurred pursuant to paragraph (a) or pursuant to clauses (ii), (iv), (v) (other than any Existing PMI Senior Subordinated Notes described in such clause (v)) or this clause (vii); (viii) Indebtedness (A) in respect of performance bonds, bankers' acceptances, letters of credit and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held surety or appeal bonds provided by the Company or a Restricted Subsidiaryin the ordinary course of its business and which do not secure Indebtedness other than the Indebtedness and the obligations with respect to which such instruments were issued and (B) under Currency Agreements and Interest Rate Agreements Incurred which, at the time of Incurrence, is in the ordinary course of business; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemedthat, in each case, the case of Currency Agreements which relate to constitute the incurrence of such Indebtedness by the issuer thereof;
(c) the Securities;
(d) Indebtedness outstanding as of the date of this Note (other than Indebtedness described in clause (A), (B) or (C) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of and Interest Rate or Agreements, such Currency Protection Agreements and Interest Rate Agreements are directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred Incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence Company pursuant to a Receivables Program;
this Indenture; (h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(iix) Indebtedness represented by guarantees Guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under Incurred pursuant to this covenant or Section 4.4; (x) (A) Permitted Customer Financing and (B) Guarantees permitted to be Incurred pursuant to clause (xii)(B) of the Indenture;
definition of "Permitted Investment"; (jxi) Indebtedness incurred of the Company arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within five business days of Incurrence; (xii) Indebtedness of the Company arising from agreements providing for indemnification, adjustment of purchase price or similar obligations Incurred in connection with the acquisition or disposition of any assets of the Company or a Restricted Subsidiary (whether evidenced by a note, backed by a letter of credit or otherwise) in a principal amount not to exceed (in the case of a disposition) the gross proceeds actually received by the Company or any Restricted Subsidiary in connection with such disposition; (xiii) Indebtedness of the Company representing obligations in respect of self-insured retention amounts, amounts required in connection with workers' compensation and other insurance coverage Incurred in the ordinary course of business or reimbursement obligations in respect of amounts Incurred or paid by an insurance company under any insurance program in the ordinary course of business; (xiv) Standard Securitization Undertakings; and (xv) other Indebtedness in an aggregate principal amount whichoutstanding at any time not to exceed $25.0 million.
(c) Notwithstanding the foregoing, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred shall not Incur any Indebtedness pursuant to this clause the foregoing paragraph (J)b) if the proceeds thereof are used, does not exceed $55,000,000. With respect directly or indirectly, to Refinance any Subordinated Obligations unless such new Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may shall be incurred pursuant subordinated to the Notes to at least the same extent as such provision in respect of Purchase Money IndebtednessSubordinated Obligations being Refinanced.
Appears in 1 contract
Sources: Indenture (Purina Mills Inc)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incur, directly or indirectly, any Indebtedness unless, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur to, Incur any or all of the following Indebtedness:
(a) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, that the Company may Incur Indebtedness if immediately thereafter the ratio of (i) the aggregate principal amount of such Indebtedness then outstanding does not exceed (or accreted value, as the greater of $175,000,000 (less the then outstanding principal amount case may be) of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and on a consolidated basis outstanding as of the Transaction Date to (ii) 85% the Pro Forma Consolidated Cash Flow for the preceding two full fiscal quarters multiplied by two, determined on a pro forma basis as if any such Indebtedness had been Incurred and the proceeds thereof had been applied at the beginning of such two fiscal quarters, would be greater than zero and less than 5 to 1.
(b) The foregoing limitations of paragraph (a) of this covenant will not apply to any of the book value following Indebtedness ("Permitted Indebtedness"), each of the accounts receivable which shall be given independent effect:
(i) Indebtedness of the Company evidenced by the FaciliCom Notes and the Notes;
(ii) Indebtedness of FaciliCom or any of its Restricted Subsidiaries outstanding on the Original Issue Date;
(other than accounts receivable subject to any Receivables Program iii) Indebtedness of the Company or any Restricted Subsidiary under one or more Credit Facilities, in an aggregate principal amount at any one time outstanding not to exceed the greater of (x) $35 135.0 million and (y) 80% of Eligible Accounts Receivable at any one time outstanding, subject to any permanent reductions required by any other terms of this Indenture;
(iv) Indebtedness of the Company or any Restricted Subsidiary Incurred to finance the cost (including the cost of design, development, construction, acquisition, installation or integration) of Telecommunications Assets;
(v) Indebtedness of a Restricted Subsidiary owed to and held by the Company or another Restricted Subsidiary), except that (A) any transfer of such Indebtedness by the Company or a Restricted Subsidiary (other than to the Company or another Restricted Subsidiary) or (B) the sale, transfer or other disposition by the Company or any Restricted Subsidiary of Capital of a Restricted Subsidiary which is owed Indebtedness of another Restricted Subsidiary shall, in each case determined in accordance with GAAPcase, be an Incurrence of Indebtedness by such Restricted Subsidiary, subject to the other provisions of this Indenture;
(bvi) Indebtedness of the Company owed to and held by a Restricted Subsidiary which is unsecured and Indebtedness subordinated in right to the payment and performance to the obligations of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; providedunder this Indenture and the Notes, however, except that the limitations of paragraph (a) of this Section 1011 shall apply to such Indebtedness at such time as (A) any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness by a Restricted Subsidiary (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence of such Indebtedness by the issuer thereof;
(c) the Securities;
(d) Indebtedness outstanding as of the date of this Note (other than Indebtedness described in clause (A), (B) or (C) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.to
Appears in 1 contract
Sources: Agreement to Exchange and Consent (World Access Inc /New/)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, incur, directly or indirectly, Incur any Indebtedness unless(other than the Notes, the Note Guarantees and Indebtedness existing on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1Purchase Date), ; provided that the Company and its any Restricted Subsidiaries Subsidiary may incur any or all of the following Indebtedness:
(a) Incur Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, thatif, after giving effect to any such incurrence, the aggregate principal amount Incurrence of such Indebtedness then outstanding does not exceed and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio would be greater than (x) 2.25:1 with respect to any Incurrence on or after the Purchase Date and prior to October 1, 2002, and (y)
2.5:1 with respect to any Incurrence on or after October 1, 2002. Notwithstanding the foregoing, the Company and any Restricted Subsidiary (except as specified below) may Incur each and all of $175,000,000 the following:
(less the then outstanding principal amount of i) Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described Subsidiary under the Credit Agreement outstanding at any time in clause an aggregate principal amount (together with any refinancing thereof) not to exceed the greater of (A) $250 million or (B) below) and the sum of (ix) $200 million plus (y) 80% of accounts receivable and 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary)inventory, in each case determined net of reserves and as shown on the most recent consolidated balance sheet of the Company (excluding Unrestricted Subsidiaries) prepared in accordance with GAAPGAAP and filed with the Commission or provided to the Trustee, excluding, in either case, for purposes of calculating such aggregate principal amount, the principal amount of any Interest Rate Agreements or Currency Agreements, Guarantees and indemnification payments due under the Credit Agreement, and less, in the case of the amounts specified in clause (A) and subclause (B) (x), any amount of Indebtedness under the Credit Agreement permanently repaid as provided in Section 8.8;
(bii) Indebtedness of the Company owed (A) to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a (B) to any Restricted Subsidiary; provided, however, provided that any subsequent issuance or transfer of any Capital Stock event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence an Incurrence of such Indebtedness not permitted by the issuer thereofthis clause (ii);
(c) the Securities;
(diii) Indebtedness issued in exchange for, or the net proceeds of which are used to refinance or refund, then outstanding Indebtedness and any refinancings thereof in an amount not to exceed the amount so refinanced or refunded, including committed but undrawn amounts (plus premiums, accrued interest, fees and expenses); provided that Indebtedness the proceeds of which are used to refinance or refund the Notes or Indebtedness that is pari passu with, or subordinated in right of payment to, the Notes or the Note Guarantees shall only be permitted under this clause (iii) if (A) in case the Notes are refinanced in part or the Indebtedness to be refinanced is pari passu with the Notes or Note Guarantees, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made pari passu with, or subordinate in right of payment to, the remaining Notes or Note Guarantees, as the case may be, (B) in case the Indebtedness to be refinanced is subordinated in right of payment to the Notes or Note Guarantees, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes or Note Guarantees at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes or the Note Guarantees and (C) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded; and provided further that this Note clause (other than C) shall not apply to refinancings, refundings or renewals of Indebtedness described in clause (i) above;
(iv) Indebtedness (A)) in respect of performance, surety or appeal bonds or standby letters of credit provided in the ordinary course of business, (B) under Currency Agreements, Commodities Agreements and Interest Rate Agreements; provided that such agreements (a) are designed solely to protect the Company or its Restricted Subsidiaries against fluctuations in foreign currency exchange rates, commodities prices or interest rates and (b) do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates, commodities prices or interest rates or by reason of fees, indemnities and compensation payable or cash calls thereunder, and (C) arising from agreements providing for indemnification, adjustment of this Section 3(d)(2purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the Recapitalization or the disposition of any business or assets of the Company or any Restricted Subsidiary or the disposition of any Restricted Subsidiary (other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition)), in a principal amount not to exceed the gross proceeds actually received by the Company or any Restricted Subsidiary in connection with such disposition;
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(hv) Indebtedness of the Company and the Company's Restricted Subsidiaries , to the extent the net proceeds thereof are concurrently promptly used to purchase Notes or Indenture Notes tendered in an Offer to Purchase (or an "Offer to Purchase" as defined in the Indenture) made as a result of a Change of Control or deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries Article VIII of Indebtedness otherwise permitted to be incurred under the Indenture;
(jA) Guarantees of the Notes and the Indenture Notes, (B) Guarantees of Indebtedness of the Company by any Restricted Subsidiary and (C) Guarantees of Indebtedness of any Restricted Subsidiary by another Restricted Subsidiary or by the Company;
(vii) Indebtedness incurred by of the Company or any Restricted Subsidiary Incurred to finance the acquisition, construction or improvement of any fixed or capital assets (including related fees and expenses), including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, provided that such Indebtedness is Incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier Stated Maturity or decreased Average Life thereof, provided that the aggregate principal amount of Indebtedness permitted by this clause (vii) (together with refinancings thereof) shall not exceed the greater of (A) $20 million or (B) 10% of Adjusted Consolidated Net Tangible Assets at any time outstanding;
(viii) Acquired Indebtedness in an aggregate principal amount which, at any time outstanding (together with refinancings thereof) not to exceed $25 million;
(ix) any obligation of the Company to pay any purchase price adjustment in connection with the recapitalization pursuant to Section 2.4 of the Recapitalization Agreement;
(x) the Junior Subordinated Exchange Notes issued in exchange for, and in an aggregate principal amount not in excess of the liquidation value of, plus all other accumulated and all accrued and unpaid but not yet accumulated dividends on, the Series A-1 Preferred Stock; and
(xi) Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause or any Restricted Subsidiary (J), does not exceed $55,000,000. With respect in addition to Indebtedness permitted under clauses (i) through (x) above) in an aggregate principal amount outstanding at any time (together with refinancings thereof) not to exceed the amount of $30 million less the Indebtedness outstanding under the Notes.
(b) Notwithstanding any other provision of this Section 3(d)(2)(J8.2, the maximum amount of Indebtedness that the Company or a Restricted Subsidiary may Incur pursuant to this Section 8.2 shall not be deemed to be exceeded, with respect to any outstanding Indebtedness to be refinanced in the same currency and in the same or a lesser principal amount, due solely to the result of fluctuations in the exchange rates of currencies.
(c) no For purposes of determining any particular amount of Indebtedness under this Section 8.2, (1) Indebtedness Incurred under the Credit Agreement on or prior to the Purchase Date shall be treated as Incurred pursuant to clause (i) of the second paragraph of this Section 8.2, (2) 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 and (3) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.09 of the Indenture shall not be treated as Indebtedness. For purposes of determining compliance with this Section 8.2, in the event that an item of Indebtedness meets the criteria of more than $20,000,000 one of the types of Indebtedness described in the above clauses (other than Indebtedness referred to in clause (1) of the preceding sentence), the Company, in its sole discretion, shall classify, and from time to time may reclassify, such item of Indebtedness and only be incurred pursuant required to include the amount and type of such provision Indebtedness in respect one of Purchase Money Indebtednesssuch clauses.
Appears in 1 contract
Sources: Note Purchase Agreement (Knowles Electronics Holdings Inc)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company and the Subsidiary Guarantors shall be entitled to Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto on a pro forma basis, the Consolidated Coverage Ratio exceeds 2.0 2.25 to 1.
(2b) Notwithstanding the foregoing paragraph (1a), the Company and its the Restricted Subsidiaries may incur shall be entitled to Incur any or all of the following Indebtedness:
(a1) Indebtedness incurred Incurred by the Company and the Subsidiary Guarantors pursuant to the Credit Facility or any other revolving credit arrangementAsset Based Facility; provided, however, that, after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such all Indebtedness Incurred under this clause (b)(1) and then outstanding does not exceed the greater of (A) $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause 200.0 million and (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Domestic Restricted Subsidiaries and (ii) 8570% of the book value of the accounts receivable of the Company and its Domestic Restricted Subsidiaries Subsidiaries, determined in each case as of the end of the most recent month for which internal financial statements are then available;
(other than accounts receivable subject to any Receivables Program of 2) Indebtedness Incurred by the Company or any Restricted SubsidiarySubsidiary Guarantor pursuant to any Term Loan Facility; provided, however, that, after giving effect to any such Incurrence, the aggregate principal amount of all Indebtedness Incurred under this clause (2) and then outstanding does not exceed $65.0 million less the sum of all principal payments actually made from time to time after the Issue Date with respect to such Indebtedness (other than principal payments made from Refinancings thereof that are treated as Indebtedness Incurred pursuant to this clause (2), in each case determined in accordance with GAAP);
(b3) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that (A) any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereofobligor thereon, (B) if the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Securities and (C) if a Subsidiary Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations of such obligor with respect to its Subsidiary Guaranty;
(c4) the Securities;
(d5) Indebtedness outstanding as of on the date of this Note Issue Date (other than Indebtedness described in clause (A1), (B2), (3) or (C4) of this Section 3(d)(24.03(b)), including the Redeemable Notes;
(6) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Subsidiary was acquired by the Company (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by the Company); provided, however, that on the date of such acquisition and after giving pro forma effect thereto, the Company would have been able to Incur at least $1.00 of additional Indebtedness pursuant to Section 4.03(a);
(e7) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(14.03(a) or pursuant to clause (C4), (5) (other than the Redeemable Notes) or (D6) of this Section 3(d)(24.03(b) or this clause (E7); provided, however, that to the extent such Refinancing Indebtedness directly or indirectly Refinances Indebtedness of a Subsidiary (other than a Subsidiary Guarantor) Incurred pursuant to clause (6), such Refinancing Indebtedness shall be Incurred only by such Subsidiary;
(f) 8) Hedging Obligations consisting of (i) Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunderIncurred by the Company and the Restricted Subsidiaries pursuant to this Indenture or (ii) Currency Agreements directly related to the foreign exchange exposure of the Company and the Restricted Subsidiaries;
(g9) obligations in respect of performance, bid and surety bonds and completion guarantees provided by the Company or any Restricted Subsidiary in the ordinary course of business;
(10) Indebtedness incurred arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within two Business Days of its Incurrence;
(11) Indebtedness consisting of the Subsidiary Guaranty of a Subsidiary Guarantor and any Guarantee by a Subsidiary Guarantor of Indebtedness Incurred pursuant to Section 4.03(a) or pursuant to clause (1), (2), (3), (4) or (5) of this Section 4.03(b) or pursuant to clause (7) of the Section 4.03(b) to the extent the Refinancing Indebtedness Incurred thereunder directly or indirectly Refinances Indebtedness Incurred pursuant to Section 4.03(a) or pursuant to clause (4) or (5) of this Section 4.03(b);
(12) Indebtedness Incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Qualified Receivables ProgramTransaction;
(h13) Indebtedness Incurred by a Foreign Subsidiary solely for the working capital purposes of such Foreign Subsidiary or any of its Subsidiaries; and
(14) Indebtedness of the Company and the Company's or any of its Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, when taken together with all other Indebtedness of the Company and its Restricted Subsidiaries outstanding on the date of such incurrence which was incurred pursuant to this clause Incurrence (Jother than Indebtedness permitted by clauses (1) through (13) above or Section 4.03(a), ) does not exceed $55,000,000. With respect 25.0 million.
(c) Notwithstanding the foregoing, neither the Company nor any Subsidiary Guarantor shall Incur any Indebtedness pursuant to Section 4.03(b) if the proceeds thereof are used, directly or indirectly, to Refinance any Subordinated Obligations of the Company or any Subsidiary Guarantor unless either (i) such Indebtedness permitted under shall be subordinated to the Securities or to the applicable Subsidiary Guaranty to at least the same extent as such Subordinated Obligations or (ii) the purchase, repurchase, redemption, defeasance or other acquisition or retirement of such Subordinated Obligations in connection with such Refinancing is treated as a Restricted Payment made pursuant to Section 4.04(a).
(d) For purposes of determining compliance with this Section 3(d)(2)(J4.03:
(1) no any Indebtedness remaining outstanding under the Credit Agreement after the application of the net proceeds from the sale of the Securities will be initially treated as Incurred on the Issue Date under clauses (1) and (2) of paragraph (b) above;
(2) in the event that an item of Indebtedness (or any portion thereof) meets the criteria of more than $20,000,000 one of the types of Indebtedness described herein, the Company, in its sole discretion, shall classify such item of Indebtedness (or any portion thereof) at the time of Incurrence and shall only be required to include the amount and type of such Indebtedness in one of the above clauses;
(3) the Company shall be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described herein; and
(4) following the date of its Incurrence, any Indebtedness originally classified as Incurred pursuant to one of the clauses in Section 4.03(b) (other than pursuant to clause (1), (2), (4) or (5) of Section 4.03(b)) may later be incurred reclassified by the Company such that it will be deemed as having been Incurred pursuant to paragraph (a) or another clause in Section 4.03(b), as applicable, to the extent that such reclassified Indebtedness could be Incurred pursuant to such provision new clause at the time of such reclassification.
(e) For purposes of determining compliance with any U.S. dollar, pound sterling or euro-denominated restriction on the Incurrence of Indebtedness where the Indebtedness Incurred is denominated in a different currency, the amount of such Indebtedness shall be the U.S. Dollar Equivalent, Pound Sterling Equivalent or Euro Equivalent, as the case may be, determined on the date of the Incurrence of such Indebtedness; provided, however, that if any such Indebtedness denominated in a different currency is subject to a Currency Agreement with respect to U.S. dollars, pound sterling or euros, as the case may be, covering all principal, premium, if any, and interest payable on such Indebtedness, the amount of Purchase Money Indebtednesssuch Indebtedness expressed in U.S. dollars, pound sterling or euros shall be as provided in such Currency Agreement. The principal amount of any Refinancing Indebtedness Incurred in the same currency as the Indebtedness being Refinanced shall be the Euro Equivalent, Pound Sterling Equivalent or U.S. Dollar Equivalent, as appropriate, of the Indebtedness Refinanced, except to the extent that (1) such U.S. Dollar Equivalent, Pound Sterling Equivalent or Euro Equivalent was determined based on a Currency Agreement, in which case the Refinancing Indebtedness shall be determined in accordance with the preceding sentence, and (2) the principal amount of the Refinancing Indebtedness exceeds the principal amount of the Indebtedness being Refinanced, in which case the U.S. Dollar Equivalent, Pound Sterling Equivalent or Euro Equivalent of such excess, as appropriate, shall be determined on the date such Refinancing Indebtedness is Incurred.
Appears in 1 contract
Sources: Indenture (Jacuzzi Brands Inc)
Limitation on Indebtedness. (1a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, incur, directly or indirectly, Incur any Indebtedness unless, (other than the Securities and Indebtedness existing on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1Closing Date), ; provided that the Company and its Restricted Subsidiaries GST USA may incur any or all of the following Indebtedness:
(a) Incur Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, thatif, after giving effect to any the Incurrence of such incurrenceIndebtedness and the receipt and application of the proceeds therefrom, the Indebtedness to EBITDA Ratio would be greater than zero and less than 5:1. Notwithstanding the foregoing, the Company and any Restricted Subsidiary (except as specified below) may Incur each and all of the following:
(i) Indebtedness outstanding at any time (including, but not limited to, Indebtedness under the Tomen Facility) in an aggregate principal amount of such Indebtedness then outstanding does not to exceed the greater of $175,000,000 (320 million, less the then outstanding principal any amount of Indebtedness arising permanently repaid as provided under any Receivables Program of Section 4.12;
(ii) Indebtedness (A) to the Company evidenced by a promissory note or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum to any of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
(b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted SubsidiarySubsidiaries; provided, however, provided that any subsequent issuance or transfer of any Capital Stock event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence an Incurrence of such Indebtedness not permitted by the issuer thereofthis clause (ii);
(ciii) Indebtedness issued in exchange for, or the net proceeds of which are used to refinance or refund, then outstanding Indebtedness, other than Indebtedness Incurred under clause (i), (ii), (iv), (v), (vii) or (viii) of this paragraph, and any refinancings thereof in an amount not to exceed the amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses); provided that Indebtedness the proceeds of which are used to refinance or refund the Securities or Indebtedness that is pari passu with, or subordinated in right of payment to, the Securities shall only be permitted under this clause (iii) if (A) in case the Securities are refinanced in part, or the Indebtedness to be refinanced is pari passu with the Securities, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made pari passu with, or subordinate in right of payment to, the remaining Securities, (B) in case the Indebtedness to be refinanced is subordinated in right of payment to the Securities, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made subordinate in right of payment to the Securities at least to the extent that the Indebtedness to be refinanced is subordinated to the Securities and (C) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded; and provided further that in no event may Indebtedness of the Company be refinanced by means of any Indebtedness of any Restricted Subsidiary pursuant to this clause (iii); 39
(iv) Indebtedness (A) in respect of performance, surety or appeal bonds provided in the ordinary course of business, (B) under Currency Agreements and Interest Rate Agreements; provided that such agreements do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder; and (C) arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of the Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition), in a principal amount not to exceed the gross proceeds actually received by the Company or any Restricted Subsidiary in connection with such disposition;
(v) Indebtedness of the Company not to exceed, at any one time outstanding, two times the Net Cash Proceeds received by the Company after the Closing Date from the issuance and sale of its Capital Stock (other than Redeemable Stock) to a Person other than a Subsidiary of the Company to the extent such Net Cash Proceeds have not been used pursuant to clause (C)(2) of the first paragraph or clauses (iii), (iv) or (vi) of the second paragraph of Section 4.05 to make a Restricted Payment; provided that such Indebtedness does not mature prior to the Stated Maturity of the Securities and has an Average Life longer than the Securities;
(dvi) Indebtedness outstanding as Incurred to finance the cost (including, without limitation, the cost of design, development, construction, acquisition, installation or integration) of network assets (including, without limitation, equipment and real property and leasehold improvements that are necessary to install or operate network assets; provided that in no event shall the cost of any such real property and leasehold improvements financed hereby exceed 20% of the date total cost of this Note the related network assets) or inventory purchased or leased by the Company or any of its Restricted Subsidiaries after the Closing Date;
(other than vii) Indebtedness described under one or more revolving credit or working capital facilities in clause an aggregate principal amount outstanding at any time not to exceed the lesser of (A), ) $50 million and (B) or (C) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 9575% of the aggregate unpaid balance consolidated book value of the Receivables accounts receivable of the Company and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;its Restricted Subsidiaries; and
(hviii) Indebtedness of the Company and the Company's Restricted Subsidiaries or GST USA to the extent the net proceeds thereof are concurrently promptly (a) used to purchase Securities tendered in an Offer to Purchase made as a result of a Change of Control or (b) deposited to defease all the Securities under Article Eight.
(b) For purposes of determining any particular amount of Indebtedness under this Section 4.03, (1) Indebtedness Incurred under the Tomen Facility on or prior to the Closing Date shall be treated as Incurred pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
clause (i) of the second paragraph of this Section 4.03 40 and (2) Guarantees, Liens or obligations with respect to letters of credit supporting Indebtedness represented by guarantees by otherwise included in the Company or determination of such particular amount shall not be included. For purposes of determining compliance with this Section 4.03, in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described in the above clauses, the Company's Restricted Subsidiaries , in its sole discretion, shall classify such item of Indebtedness otherwise permitted and only be required to be incurred under include the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date and type of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 in one of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtednessclauses.
Appears in 1 contract
Limitation on Indebtedness. (1a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, incur, directly or indirectly, any Indebtedness unless, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur to, Incur any or all of Indebtedness (other than the following Indebtedness:
(a) Notes and Indebtedness incurred by existing on the Closing Date); provided that the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, thatmay Incur Indebtedness if, after giving effect to any the Incurrence of such incurrenceIndebtedness and the receipt and application of the proceeds thereof, the Consolidated Leverage Ratio would be less than or equal to 7 to 1, for Indebtedness Incurred on or prior to June 30, 1998, or less than or equal to 5 to 1, for Indebtedness Incurred thereafter. Notwithstanding the foregoing, the Company, and (except as specified below) any Restricted Subsidiary, may Incur each and all of the following: (i) Indebtedness in an aggregate principal amount outstanding or available at any time not to exceed the sum of (A) $150 million, plus (B) $100 million, if after giving effect to the Incurrence of such Indebtedness and application of the proceeds thereof the Consolidated Secured Indebtedness Leverage Ratio would be less than or equal to 2.25 to 1, less (C) any amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 permanently repaid as provided under Section 4.10; (less the then outstanding principal amount of ii) Indebtedness arising under any Receivables Program of owed (A) to the Company and evidenced by an unsubordinated promissory note or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
(b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted SubsidiarySubsidiaries; provided, however, provided that any subsequent issuance or transfer of any Capital Stock event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence an Incurrence of such Indebtedness not permitted by this clause (ii); (iii) Indebtedness issued in exchange for, or the net proceeds of which are used to refinance or refund, then outstanding Indebtedness (other than Indebtedness Incurred under clause (i), (ii), (iv), (vi) or (ix) of this paragraph) and any refinancings of such new Indebtedness in an amount not to exceed the amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses); provided that Indebtedness the proceeds of which are used to refinance or refund the Notes or Indebtedness that is pari passu in right of payment with, or subordinated in right of payment to, the Notes shall only be permitted under this clause (iii) if (A) in case the Notes are refinanced in part or the Indebtedness to be refinanced is pari passu in right of payment with the Notes, such new Indebtedness, by its terms or by the issuer thereof;
terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made pari passu in right of payment with, or subordinate in right of payment to, the remaining Notes, (cB) in case the Securities;
Indebtedness to be refinanced is subordinated in right of payment to the Notes, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes and (dC) Indebtedness outstanding such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded; and provided further that in no event may Indebtedness of the Company be refinanced by means of any Indebtedness of any Restricted Subsidiary pursuant to this Note (other than Indebtedness described in clause (iii); (iv) Indebtedness (A)) in respect of performance, surety or appeal bonds provided in the ordinary course of business, (B) under Currency Agreements and Interest Rate Agreements; provided that such agreements (a) are designed solely to protect the Company or its Subsidiaries against fluctuations in foreign currency exchange rates or interest rates and (b) do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder or (C) arising from agreements providing for indemnification, adjustment of this Section 3(d)(2));
purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in each case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary (e) Refinancing Indebtedness in respect other than Guarantees of Indebtedness incurred pursuant to Section 3(d)(1) Incurred by any Person acquiring all or pursuant to clause (C) any portion of such business, assets or (D) Restricted Subsidiary for the purpose of this Section 3(d)(2) or this clause (Efinancing such acquisition);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an a principal amount not exceeding 95% of to exceed the aggregate unpaid balance of gross proceeds actually received by the Receivables and Related Assets of Company or any Restricted Subsidiary in connection with such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
disposition; (hv) Indebtedness of the Company and the Company's Restricted Subsidiaries , to the extent the net proceeds thereof are concurrently promptly (A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change of Control or (B) deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to in accordance with Article Eight; (vi) Guarantees of the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries Notes and Guarantees of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on by any Restricted Subsidiary, provided the date Guarantee of such incurrence which was incurred Indebtedness is permitted by and made in accordance with Section 4.07; (vii) Indebtedness (including Acquired Indebtedness) Incurred to finance the cost (including the cost of design, development, acquisition, construction, installation, improvement, transportation or integration) for the Company or a Restricted Subsidiary to acquire equipment, inventory or other assets (tangible or intangible) used or useful in a Telecommunications Business after the Closing Date; (viii) Indebtedness of the Company not to exceed, at any one time outstanding, two times (A) the Net Cash Proceeds received by the Company after the Closing Date as a capital contribution or from the issuance and sale of its Capital Stock (other than Redeemable Stock) to a Person that is not a Subsidiary of the Company, to the extent such Net Cash Proceeds have not been used pursuant to clause (C)(2) of the first paragraph or clause (iii), (iv) or (vi) of the second paragraph of Section 4.04 to make a Restricted Payment and (B) 80% of the fair market value of property (other than cash and cash equivalents) received by the Company after the Closing Date from a contribution of capital or the sale of its Capital Stock (other than Redeemable Stock) to a Person that is not a Subsidiary of the Company, to the extent such capital contribution or sale of Capital Stock has not been used pursuant to clause (iii), (iv) or (ix) of the second paragraph of Section 4.04 to make a Restricted Payment; provided that such Indebtedness does not mature prior to the Stated Maturity of the Notes and has an Average Life longer than the Notes; and (ix) Strategic Subordinated Indebtedness.
(b) Notwithstanding any other provision of this Section 4.03, the maximum amount of Indebtedness that the Company or a Restricted Subsidiary may Incur pursuant to this clause Section 4.03 shall not be deemed to be exceeded due solely to the result of fluctuations in the exchange rates of currencies.
(J), does not exceed $55,000,000. With respect to c) For purposes of determining any particular amount of Indebtedness permitted under this Section 3(d)(2)(J4.03, (1) no 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 and (2) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.09 shall not be treated as Indebtedness. For purposes of determining compliance with this Section 4.03, in the event that an item of Indebtedness meets the criteria of more than $20,000,000 one of the types of Indebtedness may described in the above clauses, the Company, in its sole discretion, shall classify such item of Indebtedness and only be incurred pursuant required to include the amount and type of such provision Indebtedness in respect one of Purchase Money Indebtednesssuch clauses.
Appears in 1 contract
Sources: Indenture (Itc Deltacom Inc)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company and its Sub- sidiary Guarantors shall be entitled to Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto on a pro forma basis, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2b) Notwithstanding the foregoing paragraph (1a), the Company and its the Restricted Subsidiaries may incur shall be entitled to Incur any or all of the following Indebtedness:
(a1) Indebtedness incurred Incurred by the Company and any Restricted Subsidiaries pursuant to the Credit Facility or any other revolving credit arrangementFacilities; provided, however, that, immediately after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such all Indebtedness Incurred under this clause (b)(1) and then outstanding does not exceed the greater of (x) $175,000,000 (575.0 million less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries all principal payments with respect to such Indebtedness pursuant to Section 4.06(a)(3)(A) and (ii) the aggregate principal amount of Indebtedness under Permitted Securitizations and (y) the sum of (i) 85% of (A) the consolidated book value of the accounts receivable of the Company and its the Restricted Subsidiaries less (other than accounts receivable subject B) the aggregate principal amount of Indebtedness under Permitted Securitizations with respect to any Receivables Program SPE Subsidiary that is a consolidated entity in accordance with GAAP and (ii) 60% of the consolidated book value of the inventories of the Company or any and the Restricted Subsidiary), in each case determined in accordance with GAAPSubsidiaries;
(b2) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that (A) any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereofobligor thereon, (B) if the Company is the obligor on such Indebtedness and a Subsidiary Guarantor is not the obligee thereon, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Securities, and (C) if a Subsidiary Guarantor is the obligor on such Indebtedness and a Subsidiary Guarantor is not the obligee thereon, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations of such Subsidiary Guarantor with respect to its Subsidiary Guaranty;
(c3) the Securities and the Exchange Securities (other than any Additional Securities) and the Senior Notes (and the related guarantees);
(d4) Indebtedness outstanding as of on the date of this Note Issue Date (other than Indebtedness described in clause (A1), (B2) or (C3) of this Section 3(d)(24.03(b));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g5) Indebtedness incurred of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Subsidiary was acquired by a Receivables Subsidiary, the Company (other than Indebtedness described Incurred in clause (B) aboveconnection with, in an amount not exceeding 95% or to provide all or any portion of the aggregate unpaid balance funds or credit support utilized to consummate, the transaction or series of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence related transactions pursuant to which such Subsidiary became a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture Subsidiary or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees was acquired by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.Com
Appears in 1 contract
Limitation on Indebtedness. (1a) The Company shall Borrower will not, and shall will not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Borrower or any Subsidiary Guarantor will be entitled to Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto on a pro forma basis, (i) the Consolidated Coverage Leverage Ratio exceeds 2.0 would be less than (A) 6.00 to 11.00 if such Indebtedness is Incurred on or prior to May 31, 2007, (B) 5.75 to 1.00 if such Indebtedness is Incurred after May 31, 2007 and on or prior to November 30, 2008, or (C) 5.50 to 1.00 if such Indebtedness is Incurred after November 30, 2008, and (ii) if such Indebtedness to be Incurred is Senior Indebtedness, then the Senior Leverage Ratio would be less than (A) 5.25 to 1.00 if such Senior Indebtedness is Incurred on or prior to May 31, 2007 or (B) 5.00 to 1.00 if such Senior Indebtedness is Incurred after May 31, 2007.
(2b) Notwithstanding the foregoing paragraph (1a), the Company Borrower and its the Restricted Subsidiaries may incur will be entitled to Incur any or all of the following Indebtedness:
(ai) Indebtedness incurred Incurred by the Company Borrower or any Subsidiary Guarantor pursuant hereto and the other Loan Documents and pursuant to the Revolving Loan Credit Facility or any other revolving credit arrangementAgreement; provided, however, that, immediately after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such all Indebtedness Incurred under this clause (i) and then outstanding does not exceed the greater of (A) $175,000,000 (85,000,000 less the then outstanding sum of all principal amount of payments with respect to such Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause pursuant to Section 2.13 and (B) below) and the sum of (i1) 50% of the book value of the inventory of the Company Borrower and its Restricted Subsidiaries and (ii2) 8580% of the book value of the accounts receivable of the Company Borrower and its is Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPSubsidiaries;
(bii) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company Borrower or a Restricted Subsidiary; provided, however, that (A) any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company Borrower or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer obligor thereon, (B) if the Borrower is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of the Obligations, and (C) if a Subsidiary Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations of such Subsidiary Guarantor with respect to its Subsidiary Guarantee.
(iii) the incurrence by the Borrower and any Subsidiary Guarantor of Indebtedness represented by the Senior Notes issued on the Closing Date (including Guarantees thereof) and the exchange notes and related exchange Guarantees to be issued in exchange for the Senior Notes pursuant to the registration rights agreement entered into with the initial purchasers of the Senior Notes in connection with the issuance thereof (other than any Additional Notes (as defined in the Senior Note Indenture));
(c) the Securities;
(div) Indebtedness outstanding as of on the date of this Note Closing Date (other than Indebtedness described in clause clauses (Ai), (Bii) or (Ciii) of this paragraph (b)) and set forth in Schedule 6.01;
(v) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Subsidiary was acquired by the Borrower (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by the Borrower); provided, however, that on the date of such acquisition and after giving pro forma effect thereto, the Borrower would have been entitled to Incur at least $1.00 of additional Indebtedness pursuant to paragraph (a) of this Section 3(d)(2))6.01;
(evi) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(1) or pursuant to clause paragraph (C) or (Da) of this Section 3(d)(26.01 or clauses (iii), (iv), (v), (x) or this clause (Evi) of this paragraph (b); provided, however, that to the extent such Refinancing Indebtedness directly or indirectly Refinances Indebtedness of a Subsidiary Incurred pursuant to clause (v) of this paragraph (b), such Refinancing Indebtedness shall be Incurred only by such Subsidiary;
(fvii) Hedging Obligations consisting of (A) Interest Rate Agreements or Currency Protection Agreements entered into in the ordinary course of business and not for the purpose of speculation and directly related to Indebtedness permitted to be incurred hereunderIncurred by the Borrower and its Restricted Subsidiaries pursuant to this Agreement, or (B) Commodity Agreements related to the prices of raw materials purchased by the Borrower and its Restricted Subsidiaries;
(gviii) Indebtedness incurred arising from the honoring by a Receivables bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of its Incurrence;
(ix) any Guarantee by the Borrower or a Subsidiary Guarantor of Indebtedness of the Borrower or any Subsidiary so long as the Incurrence of such Indebtedness by the Borrower or such Subsidiary Guarantor is permitted under the terms of this Agreement;
(x) Indebtedness of the Borrower and its Restricted Subsidiaries, to the extent the proceeds thereof are immediately used after the Incurrence thereof to purchase Loans tendered in an offer to prepay made as a result of a Change of Control;
(xi) Indebtedness (including Capital Lease Obligations) Incurred by the Borrower or any Restricted Subsidiary to finance the purchase, lease or improvement of property (real or personal) or equipment that is used or useful in a Related Business (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets) and any Indebtedness that Refinances any Indebtedness Incurred under this clause (xi); provided, however, that the aggregate principal amount of all Indebtedness then outstanding and incurred pursuant to this clause (xi) does not exceed the greater of (A) $15,000,000 and (B) 3.0% of Consolidated Total Assets;
(xii) Indebtedness Incurred by the Borrower or any Restricted Subsidiary constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including letters of credit in respect of workers' compensation claims, health, disability or other employee benefits or property, casualty or liability insurance 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 30 days following such drawing or incurrence;
(xiii) Indebtedness arising from agreements of the Borrower or a Restricted Subsidiary providing for indemnification, adjustments to purchase price or similar obligations, in each case, Incurred or assumed in connection with the acquisition or disposition of any business, assets or a Subsidiary, other than Guarantees of Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets Incurred by any Person acquiring all or any portion of such Receivables disposed business, assets or a Subsidiary for the purpose of financing such acquisition; provided, however, that the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including noncash proceeds (the fair market value of such noncash proceeds being measured at the time of received and without giving effect to any subsequent changes in value) actually received by the Borrower and any Restricted Subsidiaries in connection with such incurrence pursuant to a Receivables Programdisposition;
(hxiv) Indebtedness obligations in respect of performance, bid, surety and appeal bonds and performance and completion guarantees provided by the Company and Borrower or any Restricted Subsidiary or obligations in respect of letters of credit related thereto, in each case in the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms ordinary course of the Indenture business or all New Notes pursuant to the terms hereinconsistent with past practice;
(ixv) Indebtedness represented Incurred by guarantees by a Securitization Subsidiary in a Qualified Securitization Financing that is not recourse (except for Standard Securitization Undertakings) to the Company Borrower or the Company's any of its Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the IndentureSubsidiaries, other than a Securitization Subsidiary;
(jxvi) Indebtedness incurred consisting of promissory notes issued by the Company Borrower or any Subsidiary Guarantor to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Capital Stock of the Borrower or any of its direct or indirect parent entities permitted by Section 6.03;
(xvii) Indebtedness Incurred by a Foreign Subsidiary in an aggregate principal amount which, when taken together with all other Indebtedness of Foreign Subsidiaries Incurred pursuant to this clause (xvii) and then outstanding, does not exceed the greater of (A) $5,000,000 and (B) 5% of Consolidated Foreign Assets as of the end of the Borrower's most recent Quarterly Reporting Period for which financial statements are available; and
(xviii) Indebtedness of the Borrower or any Restricted Subsidiary in an aggregate principal amount which, when taken together with all other Indebtedness of the Company Borrower and the Restricted Subsidiaries outstanding on the date of such incurrence which was incurred Incurrence and Incurred pursuant to this clause (Jxviii), does not exceed $55,000,000. With respect to Indebtedness permitted under 10,000,000.
(c) For purposes of determining compliance with this Section 3(d)(2)(J6.01:
(i) no any Indebtedness Incurred under the Credit Agreements will be treated as Incurred on the Closing Date under clause (i) of paragraph (b) of this Section 6.01;
(ii) in the event that an item of Indebtedness (or any portion thereof) meets the criteria of more than $20,000,000 one of the types of Indebtedness described above, the Borrower, in its sole discretion, will classify such item of Indebtedness (or any portion thereof) at the time of Incurrence and will only be required to include the amount and type of such Indebtedness in one of the above clauses;
(iii) the Borrower will be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described above; and
(iv) following the date of its Incurrence, any Indebtedness originally classified as Incurred pursuant to paragraph (a) of this Section 6.01 or pursuant to any clause in paragraph (b) of this Section 6.01 (other than clause (i) of such paragraph (b)) may later be incurred reclassified by the Borrower such that it will be deemed as having been Incurred pursuant to such provision in respect paragraph (a) or any clause of Purchase Money Indebtednesssuch paragraph (b) to the extent that such reclassified Indebtedness could be Incurred pursuant to such paragraph (a) or such clause of such paragraph (b) at the time of such reclassification.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Network Communications, Inc.)
Limitation on Indebtedness. (1) The Company shall not, and shall not permit any Restricted Subsidiary toCreate, incur, directly assume, permit to exist or indirectlyotherwise become liable with respect to any Indebtedness, any Indebtedness unless, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur any or all of the following Indebtedness:
except (a) Indebtedness incurred by the Company pursuant to the Credit Facility of New University existing or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
this Note; (b) other secured Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary New University or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence of such Indebtedness by the issuer thereof;
(c) the Securities;
(d) Indebtedness outstanding as of its wholly-owned Subsidiaries incurred after the date of this Note (other than Indebtedness described in clause (A), (B) or (C) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted that is subordinated to be incurred Noteholder’s Liens arising under the Indenture;
Security Agreement on terms satisfactory to Noteholder; (jii) Indebtedness incurred by the Company in an aggregate principal amount which, together that when aggregated with all other Indebtedness of New University and its Subsidiaries does not exceed the Company outstanding Applicable Debt Cap (if any); and (iii) the terms and conditions of which are no more restrictive on New University than the terms and conditions in this Note and the Security Agreement; and (c) unsecured Indebtedness of New University or any of its Subsidiaries incurred after the date of such incurrence which was incurred pursuant to this clause Note (J), i) that when aggregated with all other Indebtedness of New University and its Subsidiaries does not exceed $55,000,000the Applicable Debt Cap (if any); and (ii) the terms and conditions of which are no more restrictive on New University than the terms and conditions in this Note. With respect The term “Applicable Debt Cap” means a dollar amount equal to Indebtedness permitted under (A) fifteen percent (15%) of the original principal amount of this Section 3(d)(2)(JNote for periods during which more than seventy-five percent (75%) of the original principal amount of this Note remains outstanding; and (B) twenty-five percent (25%) of the original principal amount of this Note for periods during which more than fifty percent (50%) but no more than $20,000,000 seventy-five percent (75%) of Indebtedness may be incurred pursuant the original principal amount of this Note remains outstanding, it being understood that no Applicable Debt Cap will apply to such provision in respect periods during which the outstanding principal amount of Purchase Money Indebtednessthis Note is less than or equal to fifty percent (50%) of the original principal amount.
Appears in 1 contract
Sources: Transition and Operations Support Agreement (Graham Holdings Co)
Limitation on Indebtedness. (1a) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, incur, directly or indirectly, Incur any Indebtedness unless, (other than the Notes and Indebtedness existing on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1Closing Date), ; provided that the Company and its any Restricted Subsidiaries Subsidiary may incur any or all of the following Incur Indebtedness (including Acquired Indebtedness:
(a) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided), however, thatif, after giving effect to any the Incurrence of such incurrenceIndebtedness and the receipt and application of the proceeds therefrom, the pro forma Consolidated Leverage Ratio would be greater than zero and less than 5 to 1; provided that no more than 50% of the Indebtedness Incurred under this clause may be incurred by Restricted Subsidiaries. 39 33 Notwithstanding the foregoing, the Company and any Restricted Subsidiary (except as specified below) may Incur each and all of the following: (i) Indebtedness outstanding at any time in an aggregate principal amount of such Indebtedness then outstanding does not to exceed the greater of (A) $175,000,000 200 million and (B) Consolidated Adjusted Operating Cash Flow for the preceding four quarters for which reports have been filed pursuant to Section 4.17, in each case less the then outstanding principal any amount of Indebtedness arising permanently repaid as provided under Section 4.10, provided that the aggregate amount of Indebtedness of Restricted Subsidiaries outstanding at any Receivables Program one time under this clause (i) shall not exceed one-half of the Company or any Restricted Subsidiary, other than Indebtedness described greater of the amounts referred to in clause (A) and clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and above; (ii) 85% of the book value of the accounts receivable of Indebtedness (A) to the Company and evidenced by an unsubordinated promissory note or other evidence of unsubordinated indebtedness (provided that such indebtedness may be subordinated to the Proposed ING Credit Facility) or (B) to any of its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
(b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted SubsidiarySubsidiaries; provided, however, provided that any subsequent issuance or transfer of any Capital Stock event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence an Incurrence of such Indebtedness not permitted by this clause (ii); (iii) Indebtedness issued in exchange for, or the net proceeds of which are used to refinance or refund, then outstanding Indebtedness (including, without limitation, the Notes), other than Indebtedness Incurred under clause (i), (ii), (iv), (vi), (vii), (viii), (ix), (x) or (xi) of this paragraph (which clauses are either unlimited in amount or provide for the refinancing of Indebtedness Incurred thereunder), and any refinancings thereof in an amount not to exceed the amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses); provided that Indebtedness the proceeds of which are used to refinance or refund the Notes or Indebtedness that is pari passu with, or subordinated in right of payment to, the Notes shall only be permitted under this clause (iii) if (A) in case the Notes are refinanced in part or the Indebtedness to be refinanced is pari passu with the Notes, such new Indebtedness, by its terms or by the issuer thereof;
terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made pari passu with, or subordinate in right of payment to, the remaining Notes, (cB) in case the Securities;
Indebtedness to be refinanced is subordinated in right of payment to the Notes, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes, and (dC) Indebtedness outstanding such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded (assuming such Indebtedness had a final Stated Maturity three months later than its actual final stated maturity); and provided further that in no event may Indebtedness of the Company be refinanced by means of any Indebtedness of any Restricted Subsidiary pursuant to this Note (other than Indebtedness described in clause (iii); (iv) Indebtedness (A)) in respect of performance, surety or appeal bonds provided in the ordinary course of business, (B) under Currency Agreements and Interest Rate Agreements; provided that such agreements (a) are designed solely to protect the Company or its Subsidiaries against fluctuations in foreign 40 34 currency exchange rates or interest rates and (b) do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder; and (C) arising from agreements providing for indemnification, adjustment of this Section 3(d)(2));
purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company (e) Refinancing Indebtedness in respect other than Guarantees of Indebtedness incurred pursuant to Section 3(d)(1) Incurred by any Person acquiring all or pursuant to clause (C) any portion of such business, assets or (D) Restricted Subsidiary of this Section 3(d)(2) or this clause (Ethe Company for the purpose of financing such acquisition);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an a principal amount not exceeding 95% of to exceed the aggregate unpaid balance of gross proceeds actually received by the Receivables and Related Assets of Company or any Restricted Subsidiary in connection with such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
disposition; (hv) Indebtedness of the Company and the Company's Restricted Subsidiaries , to the extent the net proceeds thereof are concurrently promptly (A) used to purchase Notes or DM Notes tendered in an Offer to Purchase made as a result of Change in Control or (B) deposited to defease all Securities pursuant to the terms Notes as described in Sections 8.02 and 8.03; (vi) Guarantees of the Indenture Notes or all New DM Notes pursuant or Guarantees of Indebtedness of the Company by any Restricted Subsidiary provided the Guarantee of such Indebtedness is permitted by and made in accordance with Section 4.07; (vii) secured Indebtedness, in an aggregate amount not to exceed $15 million at any one time outstanding, Incurred to finance the terms herein;
cost (iincluding the cost of purchase or installation) Indebtedness represented by guarantees of equipment or other tangible capital assets used or useful in the media, communications or entertainment business, in each case acquired by the Company or a Restricted Subsidiary after the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
Closing Date; (jviii) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company not to exceed, at any one time outstanding, two times the Net Cash Proceeds (less the amount of such proceeds applied as provided in clause (ii) or (iii) of the second paragraph of Section 4.03 or applied to repay Indebtedness of the Company) received by the Company (or any Restricted Subsidiary that Guarantees the Notes in accordance with Section 4.06; provided that the Company delivers to the Trustee an Opinion of Counsel to the effect (subject to customary caveats) that such Guarantee is enforceable and provided further that such Capital Stock is not subsequently repurchased by the Company or any Restricted Subsidiary) after the Closing Date from the issuance and sale of its Capital Stock (other than Disqualified Stock) to a Person that is not a Subsidiary of the Company; provided that such Indebtedness matures after the Stated Maturity of the Notes and has an Average Life longer than the Notes; (ix) Indebtedness of the Company and each Restricted Subsidiary, not to exceed in the aggregate at any one time outstanding 60% of the accounts receivable (net of accounts more than 90 days past due, reserves and allowances for doubtful accounts, determined in accordance with GAAP) of the Company and its Restricted Subsidiaries on a consolidated basis as set forth on the date balance sheet of the Company most recently filed with the Commission pursuant to Section 4.17; provided that any such Indebtedness of any Restricted Subsidiary is not Guaranteed by the Company; (x) Indebtedness of any Restricted Subsidiary, not to exceed at any one time outstanding the amount of the commitment to lend to such Restricted Subsidiary by any Person not an Affiliate thereof on the Closing Date (and refinancings of such incurrence which was Indebtedness); and (xi) without duplication of Indebtedness permitted 41 35 under clause (x), Indebtedness incurred under the Proposed ING Credit Facility (including any Guarantees relating thereto) up to $35 million at any one time outstanding, and any refinancings thereof.
(b) Notwithstanding any other provision of this Section 4.02, the maximum amount of Indebtedness that the Company or a Restricted Subsidiary may Incur pursuant to this clause (J)Section 4.02 shall not be deemed to be exceeded, does not exceed $55,000,000. With with respect to any outstanding Indebtedness, due solely to the result of fluctuations in interest rates or the exchange rates of currencies.
(c) For purposes of determining any particular amount of Indebtedness permitted under this Section 3(d)(2)(J4.02 (1) no Guarantees, Liens, or obligations with respect to letters of credit, supporting Indebtedness of any Person otherwise included in the determination of such particular amount of Indebtedness of such Person shall not be included and (2) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.08 shall not be treated as Indebtedness. For purposes of determining compliance with this Section 4.02, in the event that an item of Indebtedness meets the criteria of more than $20,000,000 one of the types of Indebtedness may described in the above clauses, the Company, in its sole discretion, shall classify such item of Indebtedness and only be incurred pursuant required to include the amount and type of such provision Indebtedness in respect one of Purchase Money Indebtednesssuch clauses.
Appears in 1 contract
Limitation on Indebtedness. (1) The Company Neither Borrower nor any of its -------------------------- Subsidiaries shall not, and shall not permit any Restricted Subsidiary tocreate, incur, directly issue, assume or indirectly, suffer to exist any Indebtedness unlessother than (i) the Obligations, on (ii) trade payables and normal accruals incurred in the date ordinary course of business in an amount not to exceed at any time in the aggregate $7,300,000 (not including, however, for purposes of such incurrencelimitation, that portion of any trade payables and normal accruals with respect to which the Consolidated Coverage Ratio exceeds 2.0 Borrower or such Subsidiary is contesting in good faith the amount or validity thereof by appropriate proceedings, and then only to 1.
(2) Notwithstanding the foregoing paragraph (1extent that the Borrower or such Subsidiary has set aside on its books adequate reserves therefor, in accordance with GAAP), (iii) the indebtedness listed in Section 5.2 (p) of the Company and its Restricted Subsidiaries may incur any or all of the following Indebtedness:
(a) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; Disclosure Schedule provided, however, thatthat in no event shall the Capital Lease Obligations under all capital lease facilities exceed, after giving effect to any such incurrence, in the aggregate principal amount of such Indebtedness then outstanding does at any time, $32,000,000; (iv) fees and expenses not to exceed $3,500,000 incurred in connection with the greater of $175,000,000 transaction contemplated by the Merger Agreement and the Loan Documents, (less v) loans and advances from the then outstanding principal amount of Indebtedness arising under any Receivables Program of Borrower to Restricted Subsidiaries and Restricted Subsidiaries to the Company Borrower or any another Restricted Subsidiary, other than and (vi) guarantees by the Borrower or any Subsidiary of the Borrower of any Indebtedness described in clause (B) belowi) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiaryiii), in each case determined in accordance with GAAP;
(b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence of such Indebtedness by the issuer thereof;
(c) the Securities;
(d) Indebtedness outstanding as of the date of this Note (other than Indebtedness described in clause (A), (B) or (C) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.
Appears in 1 contract
Sources: Credit Agreement (Data Return Corp)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, incur, directly or indirectly, Incur any Indebtedness unless(including Acquired Indebtedness); provided, however, that the Company and any of its Restricted Subsidiaries may Incur Indebtedness (including Acquired Indebtedness) if on the date of such Incurrence and after giving pro forma effect thereto (including pro forma application of the proceeds thereof), the Fixed Charge Coverage Ratio for the Company and its Restricted Subsidiaries is greater than 2.00 to 1.00; provided, further, that Non-Guarantors may not Incur Indebtedness under this Section 3.2(a) if, after giving pro forma effect to such Incurrence (including a pro forma application of the net proceeds therefrom), more than an aggregate of the greater of (a) $300.0 million and (b) 75.0% of LTM EBITDA of Indebtedness of Non-Guarantors would be outstanding pursuant to this paragraph at such time.
(b) The first paragraph of this covenant shall not prohibit the Incurrence of the following Indebtedness (collectively, “Permitted Debt”):
(1) (X) Indebtedness Incurred under any Credit Facility (other than the ABL) by the Company or any of its Restricted Subsidiaries (including letters of credit or bankers’ acceptances issued or created under any Credit Facility) and Guarantees in respect of such Indebtedness, up to an aggregate principal amount equal to the sum of (I) the greater of (a) $600.0 million and (b) the maximum amount of Indebtedness that the Company and its Restricted Subsidiaries could incur such that the Consolidated Secured Leverage Ratio is equal to or less than 4.50 to 1.00 on a pro forma basis (provided that, for purposes of determining the amount that may be Incurred under this clause (I)(b), all Indebtedness incurred under this clause (I)(b) shall be deemed to be secured by Liens) plus (II) $375.0 million, in each case, outstanding at any one time, (Y) Indebtedness Incurred under the ABL by the Company or any of its Restricted Subsidiaries (including letters of credit or bankers’ acceptances issued or created under any Credit Facility) and Guarantees in respect of such Indebtedness, up to an aggregate principal amount outstanding at any one time not to exceed the greater of (a) $1,300.0 million and (b) the Borrowing Base as of the date of such incurrence, and (Z) in the Consolidated Coverage Ratio exceeds 2.0 to 1.case of any refinancing of any Indebtedness permitted under this clause or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including, without limitation, tender premiums) and other costs and expenses (including, without limitation, original issue discount, upfront fees or similar fees) Incurred in connection with such refinancing, and any Refinancing Indebtedness in respect thereof;
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur any or all of the following Indebtedness:
(ai) Indebtedness incurred Guarantees by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount Restricted Subsidiary of Indebtedness arising under any Receivables Program or other obligations of the Company or any Restricted Subsidiary, Subsidiary so long as the Incurrence of such Indebtedness or other than Indebtedness described in clause (B) below) and obligation is not prohibited by the sum terms of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPthis Indenture;
(b3) Indebtedness of the Company owed owing to and held by a any Restricted Subsidiary and or Indebtedness of a Restricted Subsidiary owed owing to and held by the Company or a any Restricted Subsidiary; provided, however, that that:
(i) any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be Indebtedness being held by a Restricted Subsidiary or any subsequent transfer of such Indebtedness (Person other than to the Company or a Restricted Subsidiary; and
(ii) any sale or other transfer of any such Indebtedness to a Person other than the Company or a Restricted Subsidiary; shall be deemed, in each case, to constitute the incurrence an Incurrence of such Indebtedness by the issuer Company or such Restricted Subsidiary, as the case may be;
(4) Indebtedness represented by (i) the Notes (other than any Additional Notes), including any Guarantee thereof, (ii) any Indebtedness (other than Indebtedness incurred pursuant to clauses (1), (2) and (4)(i) above) outstanding on the Issue Date (including the Existing Notes) and any Guarantee thereof, (iii) Refinancing Indebtedness (including, with respect to the Notes and the Existing Notes, any Guarantee thereof) Incurred in respect of any Indebtedness described in this clause or clauses (2), (5) or (8) of this Section 3.2(b) or Incurred pursuant to Section 3.2(a), and (iv) Management Advances;
(5) 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 into or consolidated with the Company or any Restricted Subsidiary in accordance with the terms of this Indenture; provided that such Indebtedness is in an aggregate amount not to exceed (a) the greater of $100.0 million and 25.0% of LTM EBITDA at any time outstanding plus (b) unlimited additional Indebtedness if after giving effect to such acquisition, merger or consolidation, either
(i) the Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.2(a);
(ii) either the Fixed Charge Coverage Ratio of the Company and the Restricted Subsidiaries would not be lower or the Consolidated Total Leverage Ratio of the Company and the Restricted Subsidiaries would not be higher, in each case, than immediately prior to such acquisition, merger or consolidation; or
(iii) such Indebtedness constitutes Acquired Indebtedness (other than Indebtedness Incurred in contemplation of the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Company or a Restricted Subsidiary); provided, that the only obligors with respect to such Indebtedness shall be those Persons who were obligors of such Indebtedness prior to such acquisition, merger or consolidation;
(6) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes);
(7) Indebtedness (i) represented by Capitalized Lease Obligations or Purchase Money Obligations, in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause (7) and then outstanding, does not exceed the greater of (x) $100.0 million and (y) 25.0% of LTM EBITDA and any Refinancing Indebtedness in respect thereof and (ii) arising out of Sale and Leaseback Transactions;
(8) Indebtedness in respect of (i) workers’ compensation claims, self-insurance obligations, customer guarantees, performance, indemnity, surety, judgment, appeal, advance payment, customs, value added or other tax or other guarantees or other similar bonds, instruments or obligations and completion guarantees and warranties provided by the Company or a Restricted Subsidiary or relating to liabilities, obligations or guarantees Incurred in the ordinary course of business or consistent with past practice, (ii) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or consistent with past practice; provided, however, that such Indebtedness is extinguished within five Business Days of Incurrence; (iii) customer deposits and advance payments received in the ordinary course of business or consistent with past practice from customers for goods or services purchased in the ordinary course of business or consistent with past practice; (iv) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business or consistent with past practice, (v) any customary treasury, depositary, cash management, automatic clearinghouse arrangements, overdraft protections, credit or debit card, purchase card, electronic funds transfer, cash pooling or netting or setting off arrangements or similar arrangements in the ordinary course of business or consistent with past practice, and (vi) Settlement Indebtedness;
(9) Indebtedness arising from agreements providing for guarantees, indemnification, obligations in respect of earn-outs or other adjustments of purchase price or, in each case, similar obligations, in each case, Incurred or assumed in connection with the acquisition or disposition of any business or assets or Person or any Capital Stock of a Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring or disposing of such business or assets or such Subsidiary for the purpose of financing such acquisition or disposition); provided that the maximum liability of the Company and its Restricted Subsidiaries in respect of all such Indebtedness in connection with a disposition shall at no time exceed the gross proceeds, including the fair market value of non-cash proceeds (measured at the time received and without giving effect to any subsequent changes in value), actually received by the Company and its Restricted Subsidiaries in connection with such disposition;
(10) Indebtedness in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause (10) and then outstanding, will not exceed 100.0% of the Net Cash Proceeds received by the Company from the issuance or sale (other than to a Restricted Subsidiary) of its Capital Stock or otherwise contributed to the equity (in each case, other than through the issuance of Disqualified Stock, Designated Preferred Stock or an Excluded Contribution) of the Company, in each case, subsequent to the Issue Date and any Refinancing Indebtedness in respect thereof; provided, however, that (i) 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 (ii) any Net Cash Proceeds that are so received or contributed shall be excluded for purposes of Incurring Indebtedness pursuant to this clause (10) to the extent such Net Cash Proceeds or cash have been applied to make Restricted Payments;
(11) Indebtedness of Non-Guarantors in an aggregate amount not to exceed the greater of (a) $100.0 million and (b) 25.0% of LTM EBITDA at any time outstanding and any Refinancing Indebtedness in respect thereof;
(c12) Indebtedness consisting of promissory notes issued by the SecuritiesCompany or any of its Subsidiaries to any current or former employee, director or consultant of the Company, any of its Subsidiaries or any Parent Entity (or permitted transferees, assigns, estates, or heirs of such employee, director or consultant), to finance the purchase or redemption of Capital Stock of the Company or any Parent Entity that is permitted by Section 3.3;
(d) Indebtedness outstanding as of the date of this Note (other than Indebtedness described in clause (A), (B) or (C) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h13) Indebtedness of the Company and the Company's or any of its Restricted Subsidiaries to consisting of (i) the extent financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case Incurred in the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms ordinary course of the Indenture business or all New Notes pursuant to the terms hereinconsistent with past practice;
(i14) Indebtedness represented by guarantees in an aggregate outstanding principal amount which when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause (14) and then outstanding will not exceed the greater of (a) $275.0 million and (b) 70.0% of LTM EBITDA and any Refinancing Indebtedness in respect thereof;
(15) Indebtedness in respect of a Receivables Facility;
(16) Indebtedness of the Company or any of its Restricted Subsidiaries arising pursuant to any Permitted Tax Restructuring;
(17) Indebtedness of the seller of any business or assets permitted to be acquired by the Company or any Restricted Subsidiary under this Indenture; provided that the aggregate amount of Indebtedness Incurred pursuant to this clause and then outstanding will not exceed $50.0 million;
(18) any obligation, or guaranty of any obligation, of the Company or any Restricted Subsidiary to reimburse or indemnify a Person extending credit to customers of the Company or a Restricted Subsidiary incurred in the ordinary course of business or consistent with past practice for all or any portion of the amounts payable by such customers to the Person extending such credit
(19) Indebtedness to a customer to finance the acquisition of any equipment necessary to perform services for such customer; provided that the terms of such Indebtedness are consistent with those entered into with respect to similar Indebtedness prior to the Issue Date, including that (1) the repayment of such Indebtedness is conditional upon such customer ordering a specific volume of goods and (2) such Indebtedness does not bear interest or provide for scheduled amortization or maturity; and
(20) obligations in respect of Disqualified Stock in an amount not to exceed $25.0 million outstanding at any time.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 3.2:
(1) subject to clause (3) below, in the event that all or any portion of any item of Indebtedness meets the criteria of more than one of the types of Indebtedness described in the first and second paragraphs of this covenant, the Company's Restricted Subsidiaries , in its sole discretion, shall classify, and may from time to time reclassify, such item of Indebtedness otherwise and only be required to include the amount and type of such Indebtedness in Section 3.2(a) or one of the clauses of Section 3.2(b);
(2) additionally, all or any portion of any item of Indebtedness may later be reclassified as having been Incurred pursuant to any type of Indebtedness described in Section 3.2(a) or (b) so long as such Indebtedness is permitted to be incurred under Incurred pursuant to such provision and any related Liens are permitted to be Incurred at the Indenturetime of reclassification;
(j3) all Indebtedness outstanding on the Issue Date under the Credit Agreement and the ABL shall be deemed to have been Incurred on the Issue Date under Section 3.2(b)(1);
(4) in the case of any Refinancing Indebtedness, such Indebtedness shall not include the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including, without limitation, tender premiums) and other costs and expenses (including, without limitation, original issue discount, upfront fees or similar fees) Incurred in connection with such refinancing;
(5) Guarantees of, or obligations in respect of letters of credit, bankers’ acceptances or other similar instruments relating to, or Liens securing, Indebtedness that is otherwise included in the determination of a particular amount of Indebtedness shall not be included;
(6) if obligations in respect of letters of credit, bankers’ acceptances or other similar instruments are Incurred pursuant to any Credit Facility and are being treated as incurred by pursuant to Section 3.2(a) or any clause of Section 3.2(b) and the Company in an aggregate letters of credit, bankers’ acceptances or other similar instruments relate to other Indebtedness, then such other Indebtedness shall not be included;
(7) the principal amount which, together with all other Indebtedness of any Disqualified Stock of the Company outstanding or a Restricted Subsidiary, or Preferred Stock of 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;
(8) 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;
(9) in the event that the Company or a Restricted Subsidiary enters into or increases commitments under a revolving credit facility, the Fixed Charge Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable, for borrowings and reborrowings thereunder (and including issuance and creation of letters of credit and bankers’ acceptances thereunder) will, at the Company’s option as elected on the date the Company or a Restricted Subsidiary, as the case may be, enters into or increases such commitments, either (a) be determined on the date of such incurrence which was incurred pursuant to this clause revolving credit facility or such increase in commitments (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.assuming that t
Appears in 1 contract
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company and the Subsidiary Guarantors shall be entitled to Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto on a pro forma basis, no Default has occurred and is continuing and the Consolidated Coverage Ratio exceeds 2.0 to 11.0.
(2b) Notwithstanding the foregoing paragraph (1a), the Company Company, and its the Restricted Subsidiaries may incur shall be entitled to Incur any or all of the following Indebtedness:
(a1) Indebtedness incurred Incurred by the Company and its Restricted Subsidiaries pursuant to the any Revolving Credit Facility or any other revolving credit arrangementFacility; provided, however, that, immediately after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such all Indebtedness Incurred under this clause (1) and then outstanding does not exceed the greater of (A) $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause 75.0 million and (B) below) and the sum of (ix) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and Subsidiaries, (iiy) 8580% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries and (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPz) $10 million;
(b2) Indebtedness of Incurred by the Company owed and the Subsidiary Guarantors pursuant to any Term Loan Facility; provided, however, that, after giving effect to any such Incurrence, the aggregate principal amount of all Indebtedness Incurred under this clause (2) and held by a Restricted Subsidiary and then outstanding does not exceed $50.0 million less the aggregate sum of all principal payments actually made from time to time after the Issue Date with respect to such Indebtedness of a Restricted Subsidiary pursuant to Section 4.06(a)(3)(A);
(3) Indebtedness owed to and held by the Company or a Restricted Subsidiary; provided, however, that (A) any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereof;
obligor thereon and (cB) so long as the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Securities;
(d4) the Securities other than any Additional Securities;
(5) Indebtedness outstanding as of on the date of this Note Issue Date (other than Indebtedness described in clause (A1), (B2), (3) or (C4) of this Section 3(d)(24.03(b));
(e6) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Subsidiary was acquired by or merged into the Company or a Restricted Subsidiary (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by or merged into the Company or a Restricted Subsidiary); provided, however, that on the date of such acquisition or merger and after giving pro forma effect thereto, the Company would have been able to Incur at least $1.00 of additional Indebtedness pursuant to Section 4.03(a);
(7) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(14.03(a) or pursuant to clause (C4), (5) or (D6) of this Section 3(d)(24.03(b) or this clause (E7); provided, however, that to the extent such Refinancing Indebtedness directly or indirectly Refinances Indebtedness of a Subsidiary Incurred pursuant to clause (6) of this Section 4.03(b), such Refinancing Indebtedness shall be Incurred only by such Subsidiary;
(f) 8) Hedging Obligations consisting of Interest Rate or Agreements and Currency Protection Agreements directly related entered into in the ordinary course of business to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables hedge interest rate and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness currency risk of the Company and the Company's Restricted Subsidiaries and not for the purpose of speculation;
(9) obligations in respect of performance, bid, appeal and surety bonds and completion guarantees provided by the Company or any Restricted Subsidiary in the ordinary course of business;
(10) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of its Incurrence;
(11) Indebtedness consisting of the Subsidiary Guaranty of a Subsidiary Guarantor and any Guarantee by a Subsidiary Guarantor of Indebtedness Incurred pursuant to Section 4.03(a) or pursuant to clause (1), (2), (3), (4), (5), (8) or (9) of this Section 4.03(b) or pursuant to clause (7) of this Section 4.03(b) to the extent the net proceeds thereof are concurrently deposited to defease all Securities Refinancing Indebtedness Incurred thereunder directly or indirectly Refinances Indebtedness Incurred pursuant to the terms of the Indenture Section 4.03(a) or all New Notes pursuant to the terms hereinclause (4) or (5) of this Section 4.03(b);
(i12) Indebtedness represented by guarantees (including Capital Lease Obligations) Incurred by the Company or the Company's any of its Restricted Subsidiaries to finance the purchase, lease or improvement of property (real or personal) or equipment (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets), and Refinancing Indebtedness Incurred in respect of Indebtedness otherwise permitted Incurred pursuant to be incurred under the Indenture;
this clause (j) Indebtedness incurred by the Company 12), in an aggregate principal amount which, when added together with the amount of all Indebtedness Incurred pursuant to this clause (12) and then outstanding, does not exceed the greater of (A) $15 million and (B) 3% of Total Assets;
(13) Indebtedness of a Foreign Subsidiary Incurred to finance the working capital of such Foreign Subsidiary; and
(14) Indebtedness of the Company or of any of its Restricted Subsidiaries in an aggregate principal amount which, when taken together with all other Indebtedness of the Company and its Restricted Subsidiaries outstanding on the date of such incurrence which was incurred pursuant to Incurrence (other than Indebtedness permitted by clauses (1) through (13) of this clause (JSection 4.03(b) above or Section 4.03(a), ) does not exceed $55,000,000. With 25 million.
(c) Notwithstanding the foregoing, neither the Company nor any Subsidiary Guarantor shall Incur any Indebtedness pursuant to Section 4.03(b) if the proceeds thereof are used, directly or indirectly, to Refinance any Subordinated Obligations of the Company or any Subsidiary Guarantor unless such Indebtedness shall be subordinated to the Securities or the applicable Subsidiary Guaranty, as the case may be, to at least the same extent as such Subordinated Obligations.
(d) For purposes of determining compliance with this covenant:
(1) any Indebtedness remaining outstanding under the Credit Agreement after the application of the net proceeds from the sale of the Initial Securities will be treated as Incurred on the Issue Date under clauses (1) and (2) of Section 4.03(b);
(2) in the event that an item of Indebtedness (or any portion thereof) meets the criteria of more than one of the types of Indebtedness described herein, the Company, in its sole discretion, shall classify such item of Indebtedness (or any portion thereof) at the time of Incurrence and shall only be required to include the amount and type of such Indebtedness in one of the above clauses; and
(3) the Company shall be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described herein.
(e) Notwithstanding Section 4.03(a) or 4.03(b), none of the Company, Holdings or any Subsidiary Guarantor shall Incur (1) any Indebtedness if such Indebtedness is subordinate or junior in ranking in any respect to any Senior Indebtedness permitted under this Section 3(d)(2)(Jof the Company, Holdings or such Subsidiary Guarantor, as applicable, unless such Indebtedness is Senior Subordinated Indebtedness or is expressly subordinated in right of payment to Senior Subordinated Indebtedness of the Company, Holdings or such Subsidiary Guarantor, as applicable, or (2) no more than $20,000,000 any Secured Indebtedness that is not Senior Indebtedness of such Person unless contemporaneously therewith such Person makes effective provision to secure the Securities, the Holdings Guaranty, or the relevant Subsidiary Guaranty, as applicable, equally and ratably with such Secured Indebtedness for so long as such Secured Indebtedness is secured by a Lien.
(f) For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Indebtedness may where the Indebtedness Incurred is denominated in a currency other than U.S. dollars, the amount of such Indebtedness shall be incurred pursuant the U.S. Dollar Equivalent determined on the date of the Incurrence of such Indebtedness; provided, however, that if any such Indebtedness denominated in a currency other than U.S. dollars is subject to a Currency Agreement covering all principal, premium, if any, and interest payable on such provision Indebtedness, the amount of such Indebtedness expressed in respect U.S. dollars shall be as provided in such Currency Agreement. The principal amount of Purchase Money Indebtednessany Refinancing Indebtedness Incurred in the same currency as the Indebtedness being Refinanced shall be the U.S. Dollar Equivalent of the Indebtedness Refinanced, except to the extent that (1) such U.S. Dollar Equivalent was determined based on a Currency Agreement, in which case the Refinancing Indebtedness shall be determined in accordance with the preceding sentence, and (2) the principal amount of the Refinancing Indebtedness exceeds the principal amount of the Indebtedness being Refinanced, in which case the U.S. Dollar Equivalent of such excess shall be determined on the date such Refinancing Indebtedness is Incurred.
Appears in 1 contract
Sources: Indenture (Amis Holdings Inc)
Limitation on Indebtedness. (1) The Company shall not, and shall not suffer or permit any Restricted Subsidiary of its Subsidiaries to, create, incur, assume, suffer to exist, or otherwise become or remain directly or indirectlyindirectly liable with respect to, any Indebtedness unlessIndebtedness, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
except (2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur any or all of the following Indebtedness:without duplication):
(a) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangementDocuments;
(b) Indebtedness existing on the Closing Date and set forth on Schedule 8.05(b);
(c) Indebtedness of Foreign Subsidiaries of the Company incurred for working capital purposes; provided, however, that, after giving effect to any such incurrence, provided that the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising incurred under any Receivables Program this subsection (c) at the time of the Company incurrence thereof shall not at any time exceed the lesser of (i) $5,000,000 or any Restricted Subsidiary, other than Indebtedness described in clause (Bii) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (iiA) 85% of the net book value of the accounts receivable of the Company and its Restricted Foreign Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary)and (B) 50% of the net book value of the inventory of the Foreign Subsidiaries of the Company, in each case determined both cases calculated in accordance with GAAP;
(b) Indebtedness GAAP at the time of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence of such Indebtedness by the issuer thereof;
(c) the Securitiesincurrence;
(d) Indebtedness outstanding as of the date Company and its Subsidiaries if, at the time of this Note and after giving pro forma effect to the incurrence of such Indebtedness (other than Indebtedness described in clause (Aincluding the application of the proceeds thereof), the Consolidated Fixed Charge Coverage Ratio is equal to or greater than 3:00 to 1:00; provided that (Bi) in no event may the aggregate principal amount of Indebtedness incurred under this subsection (e) by Subsidiaries of the Company exceed $2,500,000 at any time outstanding and (ii) Indebtedness incurred by the Company under this subsection (e) shall not provide for any scheduled principal payment, mandatory redemption or (C) of this Section 3(d)(2))amortization or sinking fund requirement prior to November 30, 2000;
(ei) Refinancing Purchase Money Indebtedness of the Company and its Subsidiaries and (ii) Indebtedness of the Company represented by trade letters of credit incurred in respect the Ordinary Course of Business, which are to be repaid in full not more than one year after which such Indebtedness incurred pursuant is originally incurred, to Section 3(d)(1finance the purchase of goods by the Company or a Subsidiary of the Company such that the aggregate principal amount at any time outstanding under this subsection (f) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E)does not exceed $5,000,000;
(f) Hedging Capital Lease Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted its Subsidiaries in an aggregate principal amount (determined in accordance with GAAP) not to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms hereinexceed $2,500,00 at any time outstanding under this subsection (g);
(i) Indebtedness represented by guarantees by of a Domestic Subsidiary of the Company owed to the Company or any of its Wholly Owned Domestic Subsidiaries so long as, in the case of Indebtedness owed by a Subsidiary of the Company to the Company's Restricted Subsidiaries , such Indebtedness or Contingent Obligation is not subordinated in right of Indebtedness otherwise permitted payment to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all any other Indebtedness of such Subsidiary, (ii) Indebtedness of a Subsidiary of the Company outstanding on owed to the date Company or a Subsidiary of such incurrence which was incurred pursuant to this clause the Company (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.other than
Appears in 1 contract
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company or any Subsidiary Guarantor may Incur Indebtedness unless, if on the date of such incurrence, Incurrence and after giving effect thereto and the application of the proceeds therefrom the Consolidated Coverage Ratio exceeds 2.0 to 1would be greater than 2.0:1.0.
(2b) Notwithstanding the foregoing paragraph (1a), the Company and its Restricted Subsidiaries may incur any or all of Incur the following Indebtedness:
(a1) (x) U.S. Bank Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the in an aggregate principal amount of such Indebtedness then outstanding does not to exceed the greater of (A) $175,000,000 (3,000,000,000, less the then outstanding principal aggregate amount of all prepayments of principal applied to permanently reduce any such Indebtedness arising under any Receivables Program in satisfaction of the Company or any Restricted Subsidiary, other than Indebtedness described in clause Company's obligations under Section 4.06 and (B) below) and the sum of (i) 5060% of the book value of the inventory of the Company and its Restricted Subsidiaries and plus (ii) 8580% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than any accounts receivable subject to any Receivables Program of pledged, sold or otherwise transferred or encumbered by the Company or any Restricted SubsidiarySubsidiary in connection with a Qualified Receivables Transaction), in each case determined case, as of the end of the most recent fiscal quarter for which financial statements have been filed with the SEC and (y) European Bank Indebtedness in accordance with GAAPan aggregate principal amount not to exceed E525,000,000; provided, however, that the amount of Indebtedness that may be Incurred pursuant to this clause (1) shall be reduced by any amount of Indebtedness Incurred and then outstanding pursuant to the election provision of clause (10)(A)(ii) below;
(b2) Indebtedness of the Company owed to and held by a any Restricted Subsidiary and or Indebtedness of a Restricted Subsidiary owed to and held by the Company or a any Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of any such Indebtedness (other than except to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereof;
(c3) Indebtedness (A) represented by the Securities issued on the Closing Date (not including any Additional Securities) and the Subsidiary Guarantees, (B) outstanding on the Closing Date (other than the Indebtedness described in clauses (1) and (2) above and clause (12) below), and (C) consisting of Refinancing Indebtedness Incurred in respect of any Indebtedness described in this clause (3) (including Indebtedness that is Refinancing Indebtedness) or the foregoing paragraph (a);
(d4) (A) Indebtedness of a Restricted Subsidiary Incurred and outstanding as of on or prior to the date of this Note on which such Restricted Subsidiary was acquired by the Company or a Restricted Subsidiary (other than Indebtedness described Incurred in clause (Acontemplation of, in connection with, as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Subsidiary of or was otherwise acquired by the Company); provided, however, that on the date that such Restricted Subsidiary is acquired by the Company, (Bi) or (C) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries would have been able to the extent the net proceeds thereof are concurrently deposited to defease all Securities Incur $1.00 of additional Indebtedness pursuant to the terms of the Indenture or all New Notes pursuant foregoing paragraph (a) after giving effect to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date Incurrence of such incurrence which was incurred Indebtedness pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J4) no more than $20,000,000 of Indebtedness may be incurred pursuant or (ii) the Consolidated Coverage Ratio immediately after giving effect to such provision Incurrence and acquisition would be greater than such ratio immediately prior to such transaction and (B) Refinancing Indebtedness Incurred by a Restricted Subsidiary in respect of Purchase Money Indebtedness.Indebtedness Incurred by such Restricted Subsidiary pursuant to this clause (4);
(5) Indebtedness (A) in respect of performance bonds, bankers' acceptances, letters of credit and surety or appeal bonds entered into by the Company or any Restricted Subsidiary in the ordinary course of business, and (B) Hedging Obligations entered into in the ordinary course of business to hedge risks with respect to the Company's or a Restricted Subsidiary's interest rate, currency or raw materials pricing exposure and not entered into for speculative purposes;
Appears in 1 contract
Limitation on Indebtedness. (1) The Company shall will not, and shall will not permit any Restricted Subsidiary of its Subsidiaries to, incur, directly or indirectly, create, incur, issue, assume, guarantee or in any manner become directly or indirectly liable, contingently or otherwise, for the payment of (in each case, to "incur") any Indebtedness unless(including, on the date of such incurrencewithout limitation, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2any Acquired Indebtedness) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur any or all of the following Indebtedness:
(a) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
(b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted SubsidiaryPermitted Indebtedness; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing the Company will be permitted to be a Restricted Subsidiary or any subsequent transfer of such incur Indebtedness (other than including, without limitation, Acquired Indebtedness) and any Subsidiary will be permitted to incur Acquired Indebtedness, if immediately thereafter the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence ratio of such Indebtedness by the issuer thereof;
(ci) the Securities;
aggregate principal amount (d) Indebtedness outstanding or accreted value, as of the date of this Note (other than Indebtedness described in clause (A), (B) or (Ccase may be) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and its Subsidiaries on a consolidated basis outstanding as of the Company's Restricted Subsidiaries Transaction Date to (ii) the extent Pro Forma Consolidated Cash Flow for the net preceding two fiscal quarters multiplied by two, determined on a pro forma basis as if any such Indebtedness had been incurred and the proceeds thereof are concurrently deposited had been applied at the beginning of such two fiscal quarters, would be greater than zero and less than 5.0 to defease all Securities pursuant to the terms 1. For purposes of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries determining any particular amount of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J4.07, 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. For purposes of determining compliance with this Section 4.07, (A) no in the event that an item of Indebtedness meets the criteria of more than $20,000,000 one of the clauses contained in the definition of "Permitted Indebtedness" contained in Section 1.01, the Company, in its sole discretion, shall classify such item of Indebtedness may and only be incurred pursuant required to include the amount and type of such provision Indebtedness in one of such clauses and (B) the principal amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect of Purchase Money Indebtednessthereof determined in conformity with GAAP.
Appears in 1 contract
Sources: Indenture (Telegroup Inc)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness unless(including, without limitation, Acquired Indebtedness); provided, however, that the Company -------- ------- and the Subsidiary Guarantors may Incur Indebtedness (including, without limitation, Acquired Indebtedness) and any Restricted Subsidiary of the Company that is not or will not, upon such Incurrence, become a Subsidiary Guarantor may incur Acquired Indebtedness, in each case if, on the date of such incurrence, Incurrence and after giving effect thereto on a pro forma --- ----- basis no Default or Event of Default has occurred and is continuing and the Consolidated Coverage Company's Leverage Ratio exceeds 2.0 is less than 7.0 to 11.0.
(2b) Notwithstanding the foregoing paragraph (1a), the Company and its Restricted Subsidiaries Subsidiaries, as applicable, may incur Incur any or all of the following Indebtedness:
(a1) Indebtedness incurred by the Company Incurred pursuant to the Credit Facility or any other revolving credit arrangementFacility; provided, however, provided -------- that, after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (125.0 million less the then outstanding principal amount of Indebtedness arising under any Receivables Program mandatory permanent repayments of revolving loans made by the Company thereunder (which are accompanied by a corresponding permanent commitment reduction) with the Net Available Cash from Asset Sales;
(2) intercompany Indebtedness between or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of among the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
(b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that (A) any subsequent issuance -------- ------- or transfer of any Capital Stock which that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or Company, a Restricted SubsidiarySubsidiary or the holder of a Lien permitted under this Indenture) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereofobligor thereon, and (B) if the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes;
(c3) the SecuritiesNotes and the Subsidiary Guarantees;
(d4) Indebtedness outstanding as of the date of this Note Company or any Restricted Subsidiary outstanding on the Issue Date (other than Indebtedness described in clause (A1), (B2) or (C3) of this Section 3(d)(2clause (b)), less the amount of any scheduled amortization payments or mandatory prepayments when actually paid or permanent reductions thereon;
(e5) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Permitted Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunderAgreements;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i6) Indebtedness represented by guarantees by the Company or the Company's its Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under this Indenture; provided that, in the Indenturecase of a guarantee by a -------- Restricted Subsidiary, such Restricted Subsidiary complies with Section 4.16 to the extent applicable;
(j7) Indebtedness incurred by of the Company or any of its Restricted Subsidiaries in respect of bid, payment and performance bonds, bankers' acceptances, workers' compensation claims, surety or appeal bonds, payment obligations in connection with self-insurance or similar obligations, and bank overdrafts (and letters of credit in respect thereof) in the ordinary course of business;
(8) Indebtedness of the Company or any Restricted Subsidiary consisting of guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets;
(9) Refinancing Indebtedness in respect of Indebtedness Incurred; and
(10) additional Indebtedness of the Company and its Restricted Subsidiaries in an aggregate principal amount whichnot to exceed $10.0 million at any one time outstanding (which amount may, together but need not, be Incurred in whole or in part under the Credit Facility).
(c) For purposes of determining compliance with all other the foregoing covenant, (1) in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described in paragraphs (a) or (b) above, the Company, in its sole discretion, may divide and classify (and later reclassify, in whole or in part, if at the time of reclassification the Company outstanding on could Incur the date item of Indebtedness being reclassified under the clauses to which it is being so reclassified) such incurrence which was incurred item of Indebtedness as being Incurred pursuant to this clause paragraph (Ja), does one or more of the above clauses of paragraph (a) or (b) or any combination of the foregoing. Accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the payment of dividends on Disqualified Capital Stock in the form of additional shares of the same class of Disqualified Capital Stock and change in the amount outstanding due solely to the result of fluctuations in the exchange rates of currencies will not exceed $55,000,000. With respect be deemed to be an Incurrence of Indebtedness permitted under or an issuance of Disqualified Capital Stock for purposes of this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness4.13.
Appears in 1 contract
Sources: Indenture (Nm Licensing LLC)
Limitation on Indebtedness. (1a) The Company shall not, and shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, incur, directly or indirectly, Incur any Indebtedness, including, without limitation, any Acquired Indebtedness unless, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1(other than Permitted Indebtedness).
(2b) Notwithstanding the foregoing paragraph (1)limitations, the Company and its Restricted Subsidiaries may incur any or all of the following Indebtedness:
(a) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
(b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Incur Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemedincluding, without limitation, Acquired Indebtedness), in each case, to constitute if (i) no Default or Event of Default shall have occurred and be continuing on the incurrence date of the proposed Incurrence thereof or would result as a consequence of such Indebtedness by proposed Incurrence and (ii) immediately after giving effect to such proposed Incurrence, the issuer thereof;Consolidated Fixed Charge Coverage Ratio of the Company is at least equal to 1.75 to 1.0 if such proposed Incurrence is on or prior to September 30, 1999; and at least equal to 2.0 to 1.0 if such proposed Incurrence is thereafter.
(c) Neither the Securities;
(d) Indebtedness outstanding as of the date of this Note (other than Indebtedness described in clause (A)Company nor any Subsidiary Guarantor will, (B) directly or (C) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) aboveindirectly, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
any event Incur any Indebtedness which by its terms (h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to or by the terms of the Indenture or all New Notes pursuant any agreement governing such Indebtedness) is subordinated to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all any other Indebtedness of the Company outstanding on or such Subsidiary Guarantor, as the date 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 Subsidiary Guarantee of such incurrence which was incurred Subsidiary Guarantor, as the case may be, to the same extent and in the same manner as such Indebtedness is subordinated pursuant to this clause (J)subordination provisions that are most favorable to the holders of any other Indebtedness of the Company or such Subsidiary Guarantor, does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness as the case may be incurred pursuant to such provision in respect of Purchase Money Indebtednessbe.
Appears in 1 contract
Sources: Indenture (Packaged Ice Inc)
Limitation on Indebtedness. (1a) The Company shall not, and shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, incur, directly or indirectly, Incur any Indebtedness, including, without limitation, any Acquired Indebtedness unless, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1(other than Permitted Indebtedness).
(2b) Notwithstanding the foregoing paragraph (1)limitations, the Company and its Restricted Subsidiaries may incur any or all of the following Indebtedness:
(a) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
(b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Incur Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemedincluding, without limitation, Acquired Indebtedness), in each case, to constitute if (i) no Default or Event of Default shall have occurred and be continuing on the incurrence date of the proposed Incurrence thereof or would result as a consequence of such Indebtedness by proposed Incurrence and (ii) immediately after giving effect to such proposed Incurrence, the issuer thereof;Consolidated Fixed Charge Coverage Ratio of the Company is at least equal to 2.0 to 1.0 if such proposed Incurrence is on or prior to March 31, 1999; and at least equal to 2.50 to 1.0 if such proposed Incurrence is thereafter.
(c) Neither the Securities;
(d) Indebtedness outstanding as of the date of this Note (other than Indebtedness described in clause (A)Company nor any Subsidiary Guarantor will, (B) directly or (C) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) aboveindirectly, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
any event Incur any Indebtedness which by its terms (h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to or by the terms of the Indenture or all New Notes pursuant any agreement governing such Indebtedness) is subordinated to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all any other Indebtedness of the Company outstanding on or such Subsidiary Guarantor, as the date 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 Subsidiary Guarantee of such incurrence which was incurred Subsidiary Guarantor, as the case may be, to the same extent and in the same manner as such Indebtedness is subordinated pursuant to this clause subordination provisions that are most favorable to the holders of any other Indebtedness of the Company or such Subsidiary Guarantor, as the case may be.
(J)d) Notwithstanding the foregoing limitations, does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) the Company and its Subsidiaries may Incur no more than $20,000,000 37,500,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money secured Indebtedness.
Appears in 1 contract
Sources: Indenture (Packaged Ice Inc)
Limitation on Indebtedness. (1) The Company shall will not, and shall not nor will it permit any Restricted Subsidiary of its Subsidiaries to, create, incur, directly assume or indirectlysuffer to exist any Indebtedness, whether current or funded, or any other liability, except (i) Indebtedness unless, on account of the Loans; (ii) other Indebtedness to the Administrative Agent or the Lenders arising hereunder; (iii) Indebtedness under any Interest Rate Hedge Agreement entered into pursuant to Section 8.13 or under any other Interest Rate Hedge Agreement with one or more other parties which is a rate cap or similar agreement; (iv) existing Indebtedness on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
hereof described in Section 7.12; (2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur any or all of the following Indebtedness:
(av) Indebtedness incurred by the Company pursuant to the Signet Credit Facility or any other revolving credit arrangementAgreement, as amended, up to a maximum aggregate amount of Indebtedness under such agreement of $85,000,000; (vi) Indebtedness pursuant to the Nomura Facilities up to a maximum aggregate amount of Indebtedness under such facility of $500,000,000; (vii) Indebtedness for the financing of Other Mortgage Investments (as defined in Section 8.17(b)) up to a maximum aggregate amount of Indebtedness for such purpose of $100,000,000; provided, however, that, after giving effect to any that such incurrence, Indebtedness shall not exceed 80% of the aggregate principal purchase price of each such Other Mortgage Investment (or one or more tranches of a specific series of mortgage pass-through certificates or similar securities constituting Other Mortgage Investments); (viii) Indebtedness not in excess of $10,000,000 for a working capital line; (ix) Indebtedness under agreements which replace all or part of the Indebtedness permitted by clause (v) or (vi) above in a maximum aggregate amount of such Indebtedness then outstanding does not to exceed the greater respective amounts permitted by such clauses; (x) Indebtedness assumed in connection with the merger of $175,000,000 (less the then outstanding principal amount certain affiliates of Indebtedness arising under any Receivables Program of C.R.I., Inc. with the Company or any Restricted Subsidiary, other than Indebtedness described in clause its affiliates not to exceed $9,200,000; (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
(bxi) Indebtedness of under the Company owed to deferred compensation arrangement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted SubsidiaryH. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ in an aggregate amount not exceeding $5,100,000; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness is permitted only so long as (other than x) the Company holds a note receivable in the same amount evidencing the obligation of certain affiliates of C.R.I., Inc. and (y) C.R.I., Inc. continues to make principal payments on such receivable to the Company or a Restricted SubsidiaryCompany; and (xii) shall be deemed, in each case, to constitute the incurrence of such any other Indebtedness expressly approved by the issuer thereof;
(c) the Securities;
(d) Indebtedness outstanding as of the date of this Note (other than Indebtedness described in clause (A), (B) or (C) of this Section 3(d)(2));Required Lenders."
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% 8.10 of the aggregate unpaid balance of the Receivables Credit Agreement is amended and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company replaced in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.its entirety as follows:
Appears in 1 contract
Sources: Amendment Agreement (Criimi Mae Inc)
Limitation on Indebtedness. (1a) The Company Borrower shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Borrower or any Subsidiary Guarantor may Incur Indebtedness unless, if on the date of such incurrence, Incurrence and after giving effect thereto and to the application of the proceeds therefrom the Consolidated Coverage Ratio exceeds 2.0 to 1would be greater than 2.0:1.0.
(2b) Notwithstanding the foregoing paragraph (1a), the Company Borrower and its Restricted Subsidiaries may incur any or all of Incur the following Indebtedness:
(a1) (x) U.S. Bank Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the in an aggregate principal amount of such Indebtedness then outstanding does not to exceed the greater of (A) $175,000,000 (3,500,000,000, less the then outstanding principal aggregate amount of all prepayments of principal applied to permanently reduce any such Indebtedness arising under any Receivables Program in satisfaction of the Company or any Restricted SubsidiaryBorrower’s obligations under Section 6.04, other than Indebtedness described in clause and (B) below) and the sum of (i) 5060% of the book value of the inventory of the Company Borrower and its Restricted Subsidiaries and plus (ii) 8580% of the book value of the accounts receivable of the Company Borrower and its Restricted Subsidiaries (other than any accounts receivable subject to any Receivables Program of pledged, sold or otherwise transferred or encumbered by the Company Borrower or any Restricted SubsidiarySubsidiary in connection with a Qualified Receivables Transaction), in each case determined case, as of the end of the most recent fiscal quarter for which financial statements have been filed with the SEC; provided that the aggregate amount of First Lien Indebtedness at any time outstanding shall not exceed the sum of (I) $3,000,000,000, (II) the aggregate amount of prepayments of Loans made pursuant to Section 2.07, and (III) the aggregate amount of offers to prepay Loans made pursuant to Section 2.07(b) in accordance connection with GAAPthe disclosure of a proposed Incurrence of First Lien Indebtedness in excess of $3,000,000,000, and (y) European Bank Indebtedness in an aggregate principal amount not to exceed €550,000,000; provided, however, that the amount of Indebtedness that may be Incurred pursuant to this clause (1) shall be reduced by any amount of Indebtedness Incurred and then outstanding pursuant to the election provision of clause (10)(A)(ii) below;
(b2) Indebtedness of the Company Borrower owed to and held by a any Restricted Subsidiary and or Indebtedness of a Restricted Subsidiary owed to and held by the Company Borrower or a any Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of any such Indebtedness (other than except to the Company Borrower or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereof;
(c3) Indebtedness (A) outstanding on the SecuritiesRestatement Date (other than the Indebtedness described in clauses (1) and (2) above and clause (12) below), and (B) consisting of Refinancing Indebtedness Incurred in respect of any Indebtedness described in this clause (3) (including Indebtedness that is Refinancing Indebtedness) or the foregoing paragraph (a);
(d4) (A) Indebtedness of a Restricted Subsidiary Incurred and outstanding as of on or prior to the date of this Note on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (other than Indebtedness described Incurred in contemplation of, in connection with, as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Subsidiary of or was otherwise acquired by the Borrower); provided, however, that on the date that such Restricted Subsidiary is acquired by the Borrower, (i) the Borrower would have been able to Incur $1.00 of additional Indebtedness pursuant to the foregoing paragraph (a) after giving effect to the Incurrence of such Indebtedness pursuant to this clause (A), 4) or (ii) the Consolidated Coverage Ratio immediately after giving effect to such Incurrence and acquisition would be greater than such ratio immediately prior to such transaction and (B) or Refinancing Indebtedness Incurred by a Restricted Subsidiary in respect of Indebtedness Incurred by such Restricted Subsidiary pursuant to this clause (C) of this Section 3(d)(2)4);
(e5) Indebtedness (A) in respect of performance bonds, Trade Acceptances, bank guarantees, letters of credit and surety or appeal bonds entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business, and (B) Hedging Obligations entered into in the ordinary course of business to hedge risks with respect to the Borrower’s or a Restricted Subsidiary’s interest rate, currency or raw materials pricing exposure and not entered into for speculative purposes;
(6) Purchase Money Indebtedness, Capitalized Lease Obligations and Attributable Debt and Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred Incurrence that, when added to all other Indebtedness Incurred pursuant to this clause (J)6) and then outstanding, does will not exceed the greater of (A) $55,000,000. With respect to 800,000,000 and (B) 5.0% of Consolidated assets of the Borrower as of the end of the most recent fiscal quarter for which financial statements have been filed with the SEC;
(7) Indebtedness Incurred by a Receivables Entity in a Qualified Receivables Transaction;
(8) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of a Financial Officer’s becoming aware of its Incurrence;
(9) any Guarantee by the Borrower or a Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary so long as the Incurrence of such Indebtedness or other obligations by the Borrower or such Restricted Subsidiary is permitted under the terms of this Section 3(d)(2)(J) no more Agreement (other than $20,000,000 of Indebtedness may be incurred Incurred pursuant to such provision clause (4) above);
(10) (A) Indebtedness of Foreign Restricted Subsidiaries in respect of Purchase Money Indebtedness.an aggregate principal amount that, when added to all other Indebtedness Incurred pursuant to this clause (10)(A) and then outstanding, will not exceed (i) $1,500,000,000 plus (ii) any amount then permitted to be Incurred pursuant to clause (1) above that the Borrower instead elects to Incur pursuant to this clause (10)(A); and
Appears in 1 contract
Sources: Second Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness unlessexcept that the Company may Incur Indebtedness if, on the date of such incurrenceIncurrence and after giving effect thereto, the Consolidated Coverage Ratio of the Company exceeds 2.0 to 11.0 if such Indebtedness is Incurred prior to June 15, 2000 or 2.25 to 1.0 if such Indebtedness is Incurred thereafter.
(2b) Notwithstanding the foregoing paragraph (1a), the Company and its the Restricted Subsidiaries may incur Incur any or all of the following Indebtedness:
(a1) Indebtedness incurred by of the Company or any Restricted Subsidiary Incurred pursuant to the Revolving Credit Facility or any other revolving credit arrangementFacilities; provided, however, that, immediately after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such all Indebtedness incurred under this clause (1) and then outstanding does not exceed the greater of (A) $175,000,000 (54.0 million less the then outstanding sum of all principal amount of payments actually made from time to time after the Issue Date with respect to such Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause pursuant to Section 4.06(a)(ii)(A) and (B) below) and the sum of (i) 50% of the book value of the consolidated inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the consolidated accounts receivable receivables of the Company and its Restricted Subsidiaries Subsidiaries;
(other than accounts receivable subject to any Receivables Program 2) Indebtedness of the Company or any Restricted SubsidiarySubsidiary Incurred pursuant to the Term Loan Facilities; provided, however, that after giving effect to any such Incurrence, the aggregate principal amount of all Indebtedness Incurred under this clause (2) and then outstanding does not exceed $16.0 million less the aggregate sum of all principal payments actually made from time to time after the Issue Date with respect to such Indebtedness (other than principal payments made from any permitted Refinancings thereof), in each case determined in accordance with GAAP;
(b3) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a or any Restricted Subsidiary owed to and held by the Company or a Restricted Wholly Owned Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Wholly Owned Subsidiary ceasing to be a Restricted Wholly Owned Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted another Wholly Owned Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereof;
(c4) the Securities;
(d5) Indebtedness outstanding as of on the date of this Note Issue Date (other than Indebtedness described in clause (A1), (B2), (3) or (C4) of this Section 3(d)(24.03(b));
(e6) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(14.03(a) or pursuant to clause (C4) or (D5) of this Section 3(d)(24.03(b) or this clause (E6);
(fi) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunderIncurred by the Company pursuant to this Indenture, (ii) surety bonds Incurred in the ordinary cause of business and (iii) self-insurance arrangements;
(g8) Indebtedness consisting of the Subsidiary Guaranties and the Guarantees of Indebtedness Incurred pursuant to paragraph (a) or pursuant to clause (1), (2), (4), (5), (6) and (9) of this Section 4.03(b); and
(9) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to Incurrence (other than Indebtedness permitted by clauses (1) through (8) of this clause (JSection 4.03(b) or Section 4.03(a), ) does not exceed $55,000,000. With respect 10.0 million.
(c) Notwithstanding the foregoing, the Company shall not Incur any Indebtedness pursuant to Section 4.03(b) if the proceeds thereof are used, directly or indirectly, to Refinance any Subordinated Obligations unless such Indebtedness permitted under shall be subordinated to the Securities to at least the same extent as such Subordinated Obligations.
(d) For purposes of determining compliance with this Section 3(d)(2)(J4.03, (i) no in the event that an item of Indebtedness meets the criteria of more than $20,000,000 one of the types of Indebtedness described herein, the Company, in its sole discretion, will classify such item of Indebtedness and only be required to include the amount and type of such Indebtedness in one of the above clauses and (ii) an item of Indebtedness may be incurred pursuant divided and classified in more than one of the types of Indebtedness described herein.
(e) Notwithstanding Section 4.03(a) or 4.03(b), the Company shall not, and shall not permit any Subsidiary Guarantor to, Incur (i) any Indebtedness if such Indebtedness is subordinate or junior in ranking in any respect to any Senior Indebtedness of the Company or such Subsidiary Guarantor, as applicable, unless such Indebtedness is Senior Subordinated Indebtedness or is expressly subordinated in right of payment to Senior Subordinated Indebtedness or (ii) any Secured Indebtedness that is not Senior Indebtedness of the Company or such Subsidiary Guarantor unless contemporaneously therewith effective provision in respect of Purchase Money Indebtednessis made to secure the Securities equally and ratably with such Secured Indebtedness for so long as such Secured Indebtedness is secured by a Lien.
Appears in 1 contract
Sources: Indenture (Bremen Bearings Inc)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incur, directly or indirectly, any Indebtedness unless, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur to, Incur any or all of Indebtedness (other than the following Indebtedness:
(a) Securities and Indebtedness incurred by existing on the Closing Date); provided that the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, thatmay Incur Indebtedness if, after giving effect to any the Incurrence of such incurrenceIndebtedness and the receipt and application of the proceeds therefrom, the Indebtedness to EBITDA Ratio would be greater than zero and less than 4:1. Notwithstanding the foregoing, the Company and any Restricted Subsidiary (except as specified below) may Incur each and all of the following: (i) Indebtedness in an aggregate principal amount of such Indebtedness then outstanding does not to exceed the greater of (A) $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company 100 million or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of Consolidated EBITDA for the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject four preceding quarters for which financial statements have been sent to any Receivables Program of the Company or any Restricted Subsidiary)Holders pursuant to Section 4.19, in each case determined in accordance with GAAP;
less any amount of Indebtedness permanently repaid as provided under Section 4.12 (bother than any Securities permanently repaid); provided 47 40 that no more than 25% of the Indebtedness Incurred under this clause (i) may be used for purposes other than capital expenditures; (ii) Indebtedness (A) owed to the Company evidenced by an unsubordinated promissory note or (B) owed to any of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted SubsidiarySubsidiaries; provided, however, provided that any subsequent issuance or transfer of any Capital Stock event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness not permitted by this clause (ii); (iii) Indebtedness issued in exchange for, or the net proceeds of which are used to refinance or refund, then outstanding Indebtedness, other than Indebtedness Incurred under clause (ii) or (v) of this paragraph, and any refinancings thereof in an amount not to exceed the amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses); provided that Indebtedness the proceeds of which are used to refinance or refund the Securities, the Security Guarantee or Indebtedness that is pari passu with, or subordinated in right of payment to, the Securities or the Security Guarantee shall only be permitted under this clause (iii) if (A) in case the Securities or the Security Guarantee are refinanced in part or the Indebtedness to be refinanced is pari passu with the Securities or the Security Guarantee, such new Indebtedness, by its terms or by the issuer thereof;
terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made pari passu with, or subordinate in right of payment to, the remaining Securities or the Security Guarantee, as the case may be, (cB) in case the Securities;
Indebtedness to be refinanced is subordinated in right of payment to the Securities or the Security Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made subordinate in right of payment to the Securities or the Security Guarantee at least to the extent that the Indebtedness to be refinanced is subordinated to the Securities or the Security Guarantee, as the case may be, and (dC) Indebtedness outstanding such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded; and provided further that in no event may Indebtedness of the Company or the Guarantor be refinanced by means of any Indebtedness of any Restricted Subsidiary other than the Guarantor pursuant to this Note clause (iii); (iv) Indebtedness: (A) in respect of performance, surety or appeal bonds provided in the ordinary course of business; (B) under Currency Agreements and Interest Rate Agreements; provided that such agreements do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder; and (C) arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary (other than Guarantees of Indebtedness described in clause (AIncurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition), (B) or (C) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an principal amount not exceeding 95% of to exceed the aggregate unpaid balance of gross proceeds actually received by the Receivables and Related Assets of Company or any Restricted Subsidiary in connection with such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
disposition; (hv) Indebtedness of the Company and or 48 41 the Company's Restricted Subsidiaries Guarantor not to exceed, at any one time outstanding, twice the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees Net Cash Proceeds received by the Company or the Company's Restricted Subsidiaries Guarantor, as the case may be, from the issuance and sale of Indebtedness otherwise permitted its Common Stock after the Closing Date to be incurred under a Person that is not a Subsidiary of the Indenture;
Company or the Guarantor, less the amount invested in the Company pursuant to clause (jiii) of the definition of "Change of Control"; (vi) Indebtedness incurred Incurred to finance the cost (including the cost of design, development, construction, improvement, installation or integration) of property, plant or equipment acquired by the Company or any of its Restricted Subsidiaries after the Closing Date and refinancings thereof; (vii) Indebtedness of the Company, to the extent the proceeds thereof are promptly (A) deposited to defease the Securities as described under "Defeasance" or (B) used to repurchase Securities tendered in an aggregate principal amount whichOffer to Purchase made as a result of a Change of Control; (viii) Guarantees of the Securities; (ix) Indebtedness of any Restricted Subsidiary, together with all other to the extent that the Company or the Guarantor is the beneficial owner of such Indebtedness and such Indebtedness is evidenced by an unsubordinated promissory note or participation certificate issued to the Company or the Guarantor by the record holder of such Indebtedness; and (x) Indebtedness of the Company or the Guarantor, the proceeds of which are used to make an Investment in Intelsat, in an amount at any one time outstanding on not to exceed $15 million during the date first three years following the Closing Date and $20 million thereafter; provided that the Company reasonably believes, at the time such Indebtedness is Incurred, that the benefits of such incurrence which was incurred Investment will result in cash flow sufficient to cover the payment of interest and principal on such Indebtedness.
(b) For purposes of determining any particular amount of Indebtedness under this Section 4.03,(a) 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, (b) the maximum amount of Indebtedness that may be Incurred pursuant to this clause (J)Section 4.03 shall be deemed not to be exceeded, does not exceed $55,000,000. With with respect to Indebtedness permitted under any outstanding Indebtedness, solely due to the result of fluctuations in the exchange rates of currencies and (c) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.09 described below shall not be treated as Indebtedness. For purposes of determining compliance with this Section 3(d)(2)(J) no 4.03, in the event that an item of Indebtedness meets the criteria of more than $20,000,000 one of the types of Indebtedness may described in the above clauses, the Company, in its sole discretion, shall classify such item of Indebtedness and only be incurred pursuant required to include the amount and type of such provision Indebtedness in respect one of Purchase Money Indebtednesssuch clauses.
Appears in 1 contract
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness unlessIndebtedness; provided, however, that the Company shall be entitled to Incur Indebtedness, and its Restricted Subsidiaries shall be entitled to Incur Eligible Indebtedness, in each case if, on the date of such incurrenceIncurrence and after giving effect thereto no Default has occurred and is continuing and, the Consolidated Coverage Ratio exceeds 2.0 to 1 if such Indebtedness is Incurred 42 50 prior to September 1, 2003 or 2.25 to 1 if such Indebtedness is Incurred thereafter.
(2b) Notwithstanding the foregoing paragraph (1Section 4.03(a), the Company and its the Restricted Subsidiaries may incur will be entitled to Incur any or all of the following Indebtedness:
(a1) Indebtedness incurred Incurred by the Company pursuant to the any Revolving Credit Facility or any other revolving credit arrangementFacility; provided, however, that, immediately after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such all Indebtedness Incurred under this clause (1) and then outstanding does not exceed the greater of (A) $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause 300.0 million and (B) below) and the sum of (ix) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (iiy) 8550% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than any accounts receivable subject to any constituting Receivables Program of the Company and Related Assets pledged, sold or any Restricted Subsidiaryotherwise transferred or encumbered in connection with a Receivables Program), in each case determined in accordance less the sum of all principal payments made with GAAPrespect to such Indebtedness pursuant to Section 4.06(a)(3)(A);
(b2) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held Incurred by the Company or a Restricted Subsidiarypursuant to any Term Loan Facility; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in that, after giving effect to any such Restricted Subsidiary ceasing Incurrence, the aggregate principal amount of all Indebtedness Incurred under this clause (2) and then outstanding does not exceed $750.0 million less the aggregate sum of all principal payments actually made from time to be a Restricted Subsidiary or any subsequent transfer of time after the Issue Date with respect to such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence of such Indebtedness by the issuer principal payments made from any permitted Refinancings thereof;
(c) the Securities;
(d) Indebtedness outstanding as of the date of this Note (other than Indebtedness described in clause (A), (B) or (C) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.
Appears in 1 contract
Sources: Indenture (GSV Inc /Fl/)
Limitation on Indebtedness. (1a) The Company shall Guarantor will not, and shall will not permit any Restricted Subsidiary to, incur, directly or indirectly, any Indebtedness unless, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries to, Incur any Indebtedness (other than the Notes, the Note Guarantee and Indebtedness existing on the Closing Date); provided that the Guarantor and any Restricted Subsidiary may incur any or all of the following Incur Indebtedness (including Acquired Indebtedness:
(a) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided), however, thatif, after giving effect to any the Incurrence of such incurrenceIndebtedness and the receipt and application of the proceeds therefrom, the pro forma Consolidated Leverage Ratio would be greater than zero and less than 5 to 1; provided that no more than 50% of the Indebtedness Incurred under this clause may be incurred by Restricted Subsidiaries other than the Issuer. Notwithstanding the foregoing, the Guarantor and any Restricted Subsidiary (except as specified below) may Incur each and all of the following: (i) Indebtedness outstanding at any time in an aggregate principal amount of such Indebtedness then outstanding does not to exceed the greater of (A) $175,000,000 225 million and (B) Consolidated EBITDA for the preceding four quarters for which reports have been filed pursuant to Section 4.19, in each case less the then outstanding principal any amount of Indebtedness arising permanently repaid as provided under any Receivables Program Section 4.11 below, provided that the aggregate amount of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject the Issuer) outstanding at any one time under this clause (i) shall not exceed one-half of the greater of the amounts referred to in clause (A) and clause (B) above; (ii) Indebtedness (A) to the Guarantor evidenced by an unsubordinated promissory note or (B) to any Receivables Program of the Company or any its Restricted Subsidiary), in each case determined in accordance with GAAP;
(b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted SubsidiarySubsidiaries; provided, however, provided that any subsequent issuance or transfer of any Capital Stock event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company Issuer or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence an Incurrence of such Indebtedness not permitted by this clause (ii); (iii) Indebtedness issued in exchange for, or the net proceeds of which are used to refinance or refund, then outstanding Indebtedness (including, without limitation, the Notes and the Note Guarantee), other than Indebtedness Incurred under clause (i), (ii), (iv), (vi), (viii), (ix) or (x) of this paragraph (which clauses provide for the refinancing of Indebtedness Incurred thereunder), and any refinancings thereof in an amount not to exceed the amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses); provided that Indebtedness the proceeds of which are used to refinance or refund the Notes or Indebtedness that is pari passu with, or subordinated in right of payment to, the Notes or the Note Guarantee shall only be permitted under this clause (iii) if (A) in case the Notes are refinanced in part or the Indebtedness to be refinanced is pari passu with the Notes or the Note Guarantee, such new Indebtedness, by its terms or by the issuer thereof;
terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made pari passu with, or subordinate in right of payment to, the remaining Notes or Note Guarantee, as the case may be, (cB) in case the Securities;
Indebtedness to be refinanced is subordinated in right of payment to the Notes or the Note Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made subordinate in right of payment to the Notes or the Note Guarantee, as the case may be, at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes or the Note Guarantee, as the case may be, and (dC) Indebtedness outstanding such new Indebtedness, determined as of the date of this Note Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded (assuming such Indebtedness had a final Stated Maturity three months later than its actual final stated maturity); and provided further that in no event may Indebtedness of the Guarantor or the Issuer be refinanced by means of any Indebtedness of any Restricted Subsidiary (other than Indebtedness described in the Issuer) pursuant to this clause (iii); (iv) Indebtedness (A)) in respect of performance, surety or appeal bonds provided in the ordinary course of business, (B) under Currency Agreements and Interest Rate Agreements; provided that such agreements (a) are designed solely to protect the Guarantor or its Subsidiaries against fluctuations in foreign currency exchange notes or interest notes and (b) do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange notes or interest notes or by reason of fees, indemnities and compensation payable thereunder; and (C) arising from agreements providing for indemnification, adjustment of this Section 3(d)(2));
purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Issuer or any of its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Issuer (e) Refinancing Indebtedness in respect other than Guarantees of Indebtedness incurred pursuant to Section 3(d)(1) Incurred by any Person acquiring all or pursuant to clause (C) any portion of such business, assets or (D) Restricted Subsidiary of this Section 3(d)(2) or this clause (Ethe Issuer for the purpose of financing such acquisition);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an a principal amount not exceeding 95% of to exceed the aggregate unpaid balance of gross proceeds actually received by the Receivables and Related Assets of Issuer or any Restricted Subsidiary in connection with such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
disposition; (hv) Indebtedness of the Company and Guarantor or the Company's Restricted Subsidiaries Issuer, to the extent the net proceeds thereof are concurrently promptly (A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change in Control or (B) deposited to defease all Securities the Notes as described below under "Defeasance"; (vi) Guarantees of the Notes or Guarantees of Indebtedness of the Guarantor or the Issuer by any Restricted Subsidiary, provided the Guarantee of such Indebtedness is permitted by and made in accordance with Section 4.07 below; (vii) secured Indebtedness Incurred to finance the cost (including the cost of design, development, construction, installation or integration) of equipment, inventory or ownership rights with respect to indefeasible rights of use or minimum investment units (or similar ownership interests) in transnational fiber optic cable or other transmission facilities, in each case acquired by the Guarantor or a Restricted Subsidiary after the Closing Date; (viii) Indebtedness of the Guarantor or the Issuer not to exceed, at any one time outstanding, two times the Net Cash Proceeds (less the amount of such proceeds applied as provided in clause (ii) or (iii) of the second paragraph of Section 4.04 below or applied to repay Indebtedness of the Guarantor or the Issuer under the Shareholder Standby Facility) received by the Guarantor or the Issuer (or any other Restricted Subsidiary that Guarantees the Notes in accordance with Section 4.07 below; provided that the Issuer delivers to the Trustee an Opinion of Counsel to the effect (subject to customary caveats) that such Guarantee is enforceable and provided further that such Capital Stock is not subsequently repurchased by the Guarantor or any Restricted Subsidiary) after the Closing Date from the issuance and sale of its Capital Stock (other than Disqualified Stock), to a Person that is not a Subsidiary of the Guarantor; provided that such Indebtedness matures after the Stated Maturity of the Notes and has an Average Life longer than the Notes; (ix) Indebtedness of the Guarantor, the Issuer and each other Restricted Subsidiary, not to exceed in aggregate at any one time outstanding, 60% of the accounts receivable (net of accounts more than 60 days past due, reserves and allowances for doubtful accounts, determined in accordance with GAAP) of the Guarantor and its Restricted Subsidiaries on a consolidated basis as set forth on the balance sheet of the Guarantor most recently filed with the Commission pursuant to Section 4.19 below; provided that any such Indebtedness of any Restricted Subsidiary (other than the terms Issuer) is not Guaranteed by the Guarantor or the Issuer; and (x) Indebtedness of any Restricted Subsidiary, not to exceed at any one time outstanding, the amount of the Indenture commitment to lend to such Restricted Subsidiary by any Person not an Affiliate thereof on the Closing Date (and refinancings of such Indebtedness).
(b) Notwithstanding any other provision of this Section 4.03, (1) the maximum amount of Indebtedness that the Guarantor or all New Notes a Restricted Subsidiary may Incur pursuant to this Section 4.03 shall not be deemed to be exceeded, with respect to any outstanding Indebtedness, due solely to the terms herein;
(i) Indebtedness represented by guarantees by the Company result of fluctuations in interest rates or the Company's Restricted Subsidiaries exchange notes of currencies and (2) the Guarantor and the Issuer may not Incur any Indebtedness otherwise permitted that is expressly subordinated to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all any other Indebtedness of the Company outstanding on Guarantor or the date Issuer, as the case may be, unless such Indebtedness, by its terms or the terms of such incurrence which was incurred any agreement or instrument pursuant to which such Indebtedness is outstanding, is also expressly made subordinate to the Note Guarantee or the Securities, as the case may be, at least to the extent that such Indebtedness is subordinated to such other Indebtedness; provided that the limitation in this clause (J)ii) shall not apply to distinctions between categories of unsubordinated Indebtedness which exist by reason of (a) any Liens or other encumbrances arising or created in respect of some but not all unsubordinated Indebtedness, does not exceed $55,000,000. With respect to (b) intercreditor agreements between holders of different classes of unsubordinated Indebtedness permitted or (c) different maturities or prepayment provisions.
(c) For purposes of determining any particular amount of Indebtedness under this Section 3(d)(2)(J4.03, (1) no 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, (2) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.09 below shall not be treated as Indebtedness and (3) (A) Indebtedness of the Guarantor Incurred pursuant to the Subordinated Shareholder Loan or its revolving credit facility, in effect on the Closing Date, with The Chase Manhattan Bank (in its capacity thereunder) on or prior to the Closing Date shall be treated as having been Incurred pursuant to the second paragraph of Section 4.03(a) (i) and (B) Indebtedness of any Restricted Subsidiary of the Guarantor Incurred on or prior to the Closing Date pursuant to any agreement (including equipment leasing or financing agreements) of such Restricted Subsidiary in effect on the Closing Date shall be treated as Incurred pursuant to Section 4.03(a)(x). For purposes of determining compliance with this Section 4.03, in the event that an item of Indebtedness meets the criteria of more than $20,000,000 one of the types of Indebtedness may described in the above clauses, the Issuer, in its sole discretion, shall classify such item of Indebtedness and only be incurred pursuant required to include the amount and type of such provision Indebtedness in respect one of Purchase Money Indebtednesssuch clauses.
Appears in 1 contract
Limitation on Indebtedness. (1) The Company Borrowers shall not, and shall not suffer or permit any Restricted Subsidiary of their Subsidiaries to, create, incur, assume, suffer to exist, or otherwise become or remain directly or indirectlyindirectly liable with respect to, any Indebtedness unlessIndebtedness, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur any or all of the following Indebtednessexcept:
(a) Indebtedness incurred by the Company pursuant to this Agreement or the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPShort Term Revolving Loan Facility;
(b) Indebtedness consisting of the Company owed Contingent Obligations permitted pursuant to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence of such Indebtedness by the issuer thereofSection 7.8;
(c) Indebtedness existing on the SecuritiesClosing Date and set forth in Schedule 7.5;
(d) Indebtedness outstanding as of the date of this Note secured by Liens permitted by subsection 7.1(i) and (other than Indebtedness described in clause (A), (Bj) or other unsecured Indebtedness incurred to finance an Acquisition if such Acquisition is permitted pursuant to Section 7.4 in an aggregate amount (Cfor all such secured and unsecured Indebtedness) of this Section 3(d)(2))outstanding not to exceed $7,500,000 at any time;
(e) Refinancing Indebtedness in respect of Indebtedness incurred in connection with leases permitted pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E)7.10;
(f) Hedging Obligations consisting Subordinated Indebtedness to a member of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunderthe Schawk Family meeting the requirements set forth in the definition thereof in Section 1.1 hereof;
(g) Indebtedness incurred permitted by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables ProgramSection 7.4(i);
(h) Unsecured Indebtedness in an aggregate principal amount at any one time outstanding not to exceed $5,000,000 provided that such Indebtedness is repaid not later than five Business Days after the date of its incurrence and provided further that the Company principal amount of such Indebtedness together with the principal amount of Loans and the Company's Restricted Subsidiaries to face amount of Letters of Credit hereunder and under the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;Short Term Revolving Loan Facility does not, at any time, exceed $100,000,000; and
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness a member of the Company outstanding on the date Schawk Family (other than Clar▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇ri▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇ Davi▇ ▇. ▇▇▇▇▇▇) ▇▇t in excess of $1,200,000 incurred solely with respect to federal, state and local income tax obligations of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With member of the Schawk Family arising with respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 income of Indebtedness may be incurred pursuant Schawk, Inc. allocable to such provision in respect member of Purchase Money Indebtednessthe Schawk Family.
Appears in 1 contract
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness unlessexcept that the Company or any Subsidiary Guarantor may Incur Indebtedness if, on the date of such incurrenceafter giving effect thereto, the Consolidated Coverage Ratio exceeds 2.0 2.25 to 11.00 if such Indebtedness is Incurred prior to August 15, 2001 or 2.50 to 1.00 if such Indebtedness is Incurred thereafter.
(2b) Notwithstanding the foregoing paragraph (1a), the Company and its Restricted Subsidiaries may incur Incur any or all of the following Indebtedness:
(a1) Indebtedness incurred by of the Company or any Restricted Subsidiary Incurred pursuant to the Revolving Credit Facility or any other revolving credit arrangementFacilities; provided, however, that, immediately after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such all Indebtedness incurred under this clause (1) and then outstanding does not exceed the greater of (A) $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause 70.0 million and (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable receivables of the Company and its Restricted Subsidiaries Subsidiaries;
(other than accounts receivable subject 2) Indebtedness of the Company Incurred pursuant to the Term Loan Facilities; provided, however, that, after giving effect to any Receivables Program such Incurrence, the aggregate principal amount of all Indebtedness Incurred under this clause (2) and then outstanding does not exceed $205.0 million less the aggregate sum of all principal payments actually made from time to time after the Issue Date with respect to such Indebtedness pursuant to clause (3)(A) of Section 4.06(a);
(3) Indebtedness of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
(b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereof; provided further, however, that any such Indebtedness of the Company or a Subsidiary Guarantor shall be unsecured Subordinated Obligations of the obligor thereof;
(c4) Indebtedness consisting of the Securities (other than Additional Securities);
(d5) Indebtedness outstanding as on the Issue Date, including, without limitation, Indebtedness assumed or to be assumed in respect of the date of this Note ▇▇▇▇▇▇ Loan Obligations (other than Indebtedness described in clause (A1), (B) or 2), (C3)or (4) of this Section 3(d)(24.03(b));
(e6) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(14.03(a) or pursuant to clause (C4), (5) or (D7) of this Section 3(d)(24.03(b) or this clause (E6);
(f7) Hedging Obligations consisting Indebtedness of Interest Rate a Person Incurred and outstanding on or Currency Protection Agreements directly prior to the date on which such Person was acquired by the Company or a Restricted Subsidiary (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to Indebtedness permitted which such Person was acquired by the Company or a Restricted Subsidiary); provided, however, that after giving pro forma effect thereto, (a) the Consolidated Coverage Ratio increases as a consequence of such incurrence and related acquisition and (b) after giving effect thereto, the Consolidated Coverage Ratio is at least 1.5 to be incurred hereunder1.0;
(g8) Hedging Obligations of the Company or any Restricted Subsidiary under or with respect to Interest Rate Agreements and Currency Agreements entered into in the ordinary course of business and not for the purpose of speculation;
(9) Indebtedness incurred of the Company or any Restricted Subsidiary in respect of performance bonds and surety or appeal bonds entered into by the Company and the Restricted Subsidiaries in the ordinary course of their business;
(10) Indebtedness consisting of the Subsidiary Guaranties and the Guarantees of Indebtedness Incurred pursuant to Section 4.03(a) or pursuant to clause (1), (2), (4), (5), (6), (7) above or (16) below of this Section 4.03(b);
(11) Indebtedness of the Company or any Restricted Subsidiary arising from the honoring by a Receivables Subsidiarybank or other financial institution of a check, other than draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness described is satisfied within five business days of Incurrence;
(12) Indebtedness (including Capital Lease Obligations) Incurred by the Company or any of its Restricted Subsidiaries to finance the purchase, lease or improvement of property (real or personal) or equipment (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets) and Refinancing Indebtedness in respect of any Indebtedness Incurred pursuant to this clause (12) in an aggregate principal amount which, when added together with the amount of Indebtedness Incurred pursuant to this clause (12) and then outstanding, does not exceed the greater of (A) $15.0 million and (B) above3.5% of Total Assets; provided, however, that, in the case of any Capital Lease Obligations, the assets subject to the related capital lease are not owned or used by the Company or any Restricted Subsidiary on the Issue Date;
(13) Indebtedness of the Company or any Restricted Subsidiary consisting of indemnification, adjustment of purchase price or similar obligations, in each case incurred in connection with the disposition of any assets of the Company or any Restricted Subsidiary in a principal amount not to exceed the gross proceeds actually received by the Company or any Restricted Subsidiary in connection with such disposition;
(14) Indebtedness of a Foreign Subsidiary Incurred to finance working capital of such Foreign Subsidiary;
(15) Indebtedness of the Company issued to directors, employees, officers or consultants of the Company or a Restricted Subsidiary in connection with the redemption or purchase of Capital Stock that by its terms is subordinated to the Securities, is not secured by any assets of the Company or its Restricted Subsidiaries and does not require cash payments on or prior to the Stated Maturity of the Securities and Refinancing Indebtedness in respect thereof, in an aggregate principal amount not exceeding 95% which, when added together with the amount of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence Indebtedness Incurred pursuant to a Receivables Program;this clause (15) and then outstanding, does not exceed $5.0 million; and
(h16) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company and the Restricted Subsidiaries outstanding on the date of such incurrence which was incurred pursuant to Incurrence (other than Indebtedness permitted by clauses (1) through (15) of this clause (JSection 4.03(b) or Section 4.03(a)), does not exceed $55,000,000. With respect 40.0 million.
(c) Notwithstanding the foregoing, the Company shall not, and shall not permit any Restricted Subsidiary to, Incur any Indebtedness pursuant to Section 4.03(b) if the proceeds thereof are used, directly or indirectly, to Refinance any Subordinated Obligations unless such Indebtedness permitted under shall be subordinated to the Securities or the relevant Subsidiary Guaranty, as applicable, to at least the same extent as such Subordinated Obligations.
(d) For purposes of determining compliance with this Section 3(d)(2)(J4.03, (1) no in the event that an item of Indebtedness meets the criteria of more than $20,000,000 one of the types of Indebtedness described herein, the Company, in its sole discretion, will classify such item of Indebtedness and only be required to include the amount and type of such Indebtedness in one of the above clauses and (2) an item of Indebtedness may be divided and classified in more than one of the types of Indebtedness described herein.
(e) Notwithstanding Section 4.03(a) or 4.03(b), the Company shall not, and shall not permit any Subsidiary Guarantor to, Incur (1) any Indebtedness if such Indebtedness is subordinate or junior in ranking in any respect to any Senior Indebtedness of the Company or such Subsidiary Guarantor, as applicable, unless such Indebtedness is Senior Subordinated Indebtedness or is expressly subordinated in right of payment to Senior Subordinated Indebtedness or (2) any Secured Indebtedness (other than trade payables incurred pursuant in the ordinary course of business) that is not Senior Indebtedness unless contemporaneously therewith effective provision is made to secure the Securities or the relevant Subsidiary Guaranty, as applicable, equally and ratably with such provision Secured Indebtedness for so long as such Secured Indebtedness is secured by a Lien.
(f) For purposes of determining compliance with any U.S. dollar denominated restriction on the Incurrence of Indebtedness where the Indebtedness is denominated in a different currency, the amount of such Indebtedness will be the U.S. Dollar Equivalent determined on the date of the Incurrence of such Indebtedness; provided, however, that if any such Indebtedness denominated in a different currency is subject to a Currency Agreement with respect to U.S. dollars, covering all principal, premium, if any, and interest payable on such Indebtedness, the amount of Purchase Money Indebtednesssuch Indebtedness expressed in U.S. dollars will be as provided in such Currency Agreement. The principal of any Refinancing Indebtedness Incurred in the same currency as the Indebtedness being refinanced will be the U.S. Dollar Equivalent of the Indebtedness Refinanced, except to the extent that (i) such U.S. Dollar Equivalent was determined based on a Currency Agreement, in which case the Refinancing Indebtedness will be determined in accordance with the preceding sentence, and (ii) the principal amount of the Refinancing Indebtedness exceeds the principal amount of the Indebtedness being Refinanced, in which case the U.S. Dollar Equivalent of such excess will be determined on the date such Refinancing Indebtedness is Incurred.
Appears in 1 contract
Sources: Indenture (Intersil Corp)
Limitation on Indebtedness. (1) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, incur, directly or indirectly, Incur any Indebtedness unless(including Acquired Indebtedness), on except:
(i) Indebtedness of the date Company or any of its Restricted Subsidiaries, if immediately after giving effect to the Incurrence of such incurrenceIndebtedness and the receipt and application of the net proceeds thereof, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur any or all of the following Indebtedness:
(a) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company for the four full fiscal quarters for which quarterly or annual financial statements are available next preceding the Incurrence of such Indebtedness, calculated on a pro forma basis in accordance with Article 11 of Regulation S-X under the Securities Act of 1933 or any Restricted Subsidiarysuccessor provision as if such Indebtedness had been Incurred on the first day of such four full fiscal quarters, other would be greater than 1.75 to 1.00 if such proposed Incurrence is on or prior to [ ], 1999 and greater than 2.00 to 1.00 if such proposed Incurrence is thereafter;
(ii) Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries Subsidiaries, Incurred under the Credit Agreement in an aggregate amount not to exceed the greater of (a) $25.0 million and (iib) an amount equal to the sum of (x) 85% of the total book value of the accounts receivable of the Company and its Restricted Subsidiaries and (y) 50% of the total book value of inventory of the Company and its Restricted Subsidiaries, in each case as reflected on the Company's most recent consolidated financial statements prepared in accordance with GAAP (it being understood that the amount Incurred under the Credit Agreement may be increased as a result of the operation of clause (xi) below);
(iii) Indebtedness owed by the Company to any direct or indirect Wholly Owned Subsidiary of the Company or Indebtedness owed by a direct or indirect Restricted Subsidiary of the Company to the Company or any direct or indirect Wholly Owned Subsidiary of the Company; provided, however, upon either (I) the transfer or other disposition by such direct or indirect Wholly Owned Subsidiary or the Company of any Indebtedness so permitted under this clause (iii) to a Person other than the Company or another direct or indirect Wholly Owned Subsidiary of the Company or (II) the issuance (other than accounts receivable subject directors' qualifying shares), sale, transfer or other disposition of shares of Capital Stock or other ownership interests (including by consolidation or merger) of such direct or indirect Wholly Owned Subsidiary to a Person other than the Company or another such Wholly Owned Subsidiary of the Company the provisions of this clause (iii) shall no longer be applicable to such Indebtedness and such Indebtedness shall be deemed to have been Incurred at the time of any Receivables Program such issuance, sale, transfer or other disposition, as the case may be;
(iv) Indebtedness of the Company or any Restricted SubsidiarySubsidiary under any interest rate or other similar agreement to the extent entered into to hedge any other Indebtedness permitted to be Incurred under this Indenture (including the Notes), in each case determined in accordance with GAAP;
(bv) Indebtedness of the Company owed to and held by a Restricted Subsidiary Issuer under the Notes issued on the Issue Date and Indebtedness outstanding on the Issue Date;
(vi) Indebtedness Incurred to Refinance any Indebtedness outstanding on the Issue Date, any Indebtedness Incurred under the prior clause (i) above or the Notes and the Guarantees; provided, however, that (I) 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 such Refinancing pursuant to the terms of the Indebtedness being Refinanced or the amount of any premium reasonably determined by the issuer of such Indebtedness as necessary to accomplish such Refinancing by means of a Restricted Subsidiary owed tender offer, exchange offer, or privately negotiated repurchase, plus the expenses of such issuer reasonably Incurred in connection therewith and (II)(A) in the case of any Refinancing of Indebtedness that is pari passu with the Notes, such Refinancing Indebtedness is made pari passu with or subordinate in right of payment to the 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, (B) 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 Indebtedness being Refinanced and held does not require redemption or other retirement (including pursuant to any required offer to purchase to be made by the Company or a Restricted Subsidiary; provided) of such Indebtedness at the option of the holder thereof prior to the final stated maturity of the Indebtedness being Refinanced, however, that any subsequent issuance other than a redemption or transfer other retirement at the option of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer the holder of such Indebtedness (other than including pursuant to a required offer to purchase made by the Company or a Restricted Subsidiary) shall be deemed, which is conditioned upon a change of control of the Company or any Restricted Subsidiary pursuant to provisions substantially similar to those contained in each case, Section 4.14 hereof and (C) any Indebtedness Incurred to constitute the incurrence of such Refinance any Indebtedness is Incurred by the issuer thereofobligor on the Indebtedness being Refinanced or by a Guarantor; provided, further, that clause (II) of the immediately preceding proviso shall not apply to any Indebtedness Incurred to Refinance term loans under the Credit Agreement outstanding on the Issuer Date or to subsequent Refinancings of any such refinancing Indebtedness;
(cvii) Indebtedness of the SecuritiesGuarantors, under the Guarantees Incurred in accordance with this Indenture;
(dviii) Indebtedness outstanding as (including Capitalized Lease Obligations and obligations with respect to industrial revenue bonds) Incurred by the Company or any of its Restricted Subsidiaries to finance the date purchase, lease or improvement of this Note property (other than Indebtedness described in clause (A), (Breal or personal) or equipment (Cwhether through the direct purchase of assets or the Capital Stock of any Person owning such assets) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an aggregate principal amount outstanding not exceeding 95to exceed 10% of the aggregate unpaid balance total amount of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness assets of the Company and the Company's Restricted Subsidiaries to (as set forth on the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms most recent consolidated balance sheet of the Indenture Company and computed in accordance with GAAP) at any time (which amount may, but need not, be Incurred in whole or all New Notes pursuant to in part under the terms hereinCredit Agreement) provided that the principal amount of such Indebtedness does not exceed the fair market value of such property or equipment;
(iix) Indebtedness represented Incurred by the Company 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 respect of workers' compensation claims or self-insurance, or other Indebtedness with respect to reimbursement type obligations regarding workers' compensation claims or self-insurance, and obligations in respect of performance and surety bonds and completion guarantees provided by the Company or any Restricted Subsidiary of the Company in the ordinary course of business;
(x) guarantees by the Company or the Company's its Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;Incurred hereunder; and
(jxi) Indebtedness incurred by of the Company in an aggregate principal amount or its Restricted Subsidiaries not otherwise permitted to be Incurred pursuant to clauses (i) through (x) above which, together with all any other outstanding Indebtedness of the Company outstanding on the date of such incurrence which was incurred Incurred pursuant to this clause (Jxi), does has an aggregate principal amount (or accreted value, as applicable) not exceed in excess of $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of 5.0 million at any time outstanding, which Indebtedness may be incurred pursuant to such provision in respect of Purchase Money IndebtednessIncurred under the Credit Agreement, this Indenture or otherwise.
Appears in 1 contract
Sources: Indenture (HRM Holdings Corp)
Limitation on Indebtedness. (1a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, incur, directly or indirectly, any Indebtedness unless, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur to, Incur any or all of Indebtedness (other than the following Indebtedness:
(a) Notes, the Note Guarantees and other Indebtedness incurred by existing on the Closing Date); provided that the Company pursuant to the Credit Facility or any other revolving credit arrangement; providedGuarantor may Incur Indebtedness, howeverand any Restricted Subsidiary may Incur Acquired Indebtedness, thatif, after giving effect to any such incurrence, the aggregate principal amount Incurrence of such Indebtedness then outstanding does not exceed and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio would be greater than 2.0:1. Notwithstanding the foregoing, the Company and any Restricted Subsidiary (except as specified below) may Incur each and all of $175,000,000 the following:
(less the then outstanding principal amount of i) Indebtedness arising under any Receivables Program of the Company or any Restricted SubsidiaryGuarantor under the Credit Agreement outstanding at any time in an aggregate principal amount not to exceed the greater of (A) $150 million, other than less any amount of such Indebtedness described in clause permanently repaid as provided under Section 4.10 and (B) below) and the amount equal to the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (iix) 85% of the net book value of the accounts receivable of the Company and its Restricted Subsidiaries and (other than accounts receivable subject y) 75% of the net book value of the inventory of the Company and its Restricted Subsidiaries, in each case on a consolidated basis, determined in accordance with GAAP as of the date such Indebtedness is incurred;
(ii) Indebtedness owed (A) to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
Guarantor evidenced by an unsubordinated promissory note or (bB) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a any other Restricted Subsidiary; providedprovided that, howeverin the case of Indebtedness described in clause (B), that (x) any subsequent issuance or transfer of any Capital Stock event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence an Incurrence of such Indebtedness not permitted by this clause (ii) and (y) if the issuer thereofCompany or any Guarantor is the obligor on such Indebtedness, such Indebtedness, other than Indebtedness represented by short-term, open account working capital notes entered into in the ordinary course of business for cash management purposes and consistent with past practice, must be expressly subordinated in right of payment to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor;
(c) the Securities;
(diii) Indebtedness issued in exchange for, or the net proceeds of which are used to refinance, refund, defease or renew other then outstanding Indebtedness (the "Refinanced Indebtedness") (other than Indebtedness outstanding under clause (ii) or (v)) in an amount not to exceed the amount of the Refinanced Indebtedness (plus premiums, accrued interest, fees, costs and expenses incurred in connection with any such refinancing, refunding, defeasance or renewal); provided that (A) if the Refinanced Indebtedness is the Notes or other Indebtedness that is pari passu with, or subordinated in right of payment to, the Notes or a Note Guarantee, such Refinanced Indebtedness shall only be permitted under this clause (iii) if (x) in case the Notes are refinanced in part or the Refinanced Indebtedness is pari passu with the Notes or a Note Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made pari passu with, or subordinate in right of payment to, the remaining Notes or the Note Guarantee, or (y) in case the Refinanced Indebtedness is subordinated in right of payment to the Notes or a Note Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes or a Note Guarantee on terms not less favorable to the Holders of the Notes and the Note Guarantees than those on which the Refinanced Indebtedness was so subordinated to the Notes or the Note Guarantees, (B) such new Indebtedness, other than Senior Indebtedness, determined as of the date of this Note (other than Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Refinanced Indebtedness, and the Average Life of such new Indebtedness described in clause (A), (B) or is at least equal to the remaining Average Life of the Refinanced Indebtedness and (C) of this Section 3(d)(2))such new Indebtedness is Incurred by the Company or a Guarantor or by the Restricted Subsidiary who is the obligor on the Refinanced Indebtedness;
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(hiv) Indebtedness of the Company and the Company's Restricted Subsidiaries , to the extent the net proceeds thereof are concurrently promptly (A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change in Control in accordance with this Indenture or (B) deposited to defease all Securities pursuant to the Notes as described under Section 8.02 and Section 8.03;
(v) Guarantees of Indebtedness of the Company or any Restricted Subsidiary by any Restricted Subsidiary; provided that such Guarantee of such Indebtedness is permitted by and made in accordance with the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the this Indenture;
(jvi) Indebtedness incurred by of the Company or any Restricted Subsidiary representing Capitalized Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, outstanding at any time in an aggregate principal amount which, (together with all other refinancings thereof), not to exceed the greater of (x) $25 million and (y) 3% of Total Assets determined at the time of Incurrence;
(vii) Physician Support Obligations incurred by the Company or any Restricted Subsidiary;
(viii) Guarantees by the Company of Indebtedness of any Restricted Subsidiary; provided that such Indebtedness is otherwise permitted by and made in accordance with this Section 4.03;
(ix) Acquired Indebtedness acquired or assumed by the Company or any Restricted Subsidiary, or resulting from the merger or consolidation of one or more Persons into or with one or more Restricted Subsidiaries; provided that after giving effect to any Acquired Indebtedness acquired or assumed under this clause (ix), the Company could Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03(a);
(x) Indebtedness of a Securitization Subsidiary Incurred in a Permitted Receivables Financing; and
(xi) Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause or any Restricted Subsidiary (J), does not exceed $55,000,000. With respect in addition to Indebtedness permitted under clauses (i) through (x) above) in an aggregate principal amount outstanding at any time (together with refinancings thereof) not to exceed $50 million.
(b) Notwithstanding any other provision of this Section 3(d)(2)(J4.03, (x) no the maximum amount of Indebtedness that may be Incurred pursuant to this Section 4.03 shall not be deemed to be exceeded, with respect to any outstanding Indebtedness, due solely as the result of fluctuations in the exchange rates of currencies and (y) Indebtedness resulting from the capitalization or accretion of interest after the issuance of any Indebtedness shall be deemed not to constitute an Incurrence of Indebtedness hereunder.
(c) For purposes of determining any particular amount of Indebtedness under this Section 4.03, (x) Indebtedness Incurred under the Credit Agreement on or prior to the Closing Date shall be treated as Incurred pursuant to Section 4.03(a)(i) above, (y) 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 and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.09 shall not be treated as Indebtedness. For purposes of determining compliance with this Section 4.03, in the event that an item of Indebtedness meets the criteria of more than $20,000,000 one of the types of Indebtedness described above (other than Indebtedness Incurred under the Credit Agreement on or prior to the Closing Date referred to in clause (x) of the preceding sentence), including under the first paragraph of Section 4.03(a), the Company, in its sole discretion, shall classify, and from time to time may reclassify, such item of Indebtedness. Without limiting the foregoing, it is understood and agreed that term loans and other Indebtedness may be incurred from time to time pursuant to the Credit Agreement in reliance on, and in compliance with, the first paragraph of Section 4.03(a) or pursuant to the relevant numbered exceptions contained in the second paragraph of Section 4.03(a) and, if so Incurred in accordance with this Section 4.03, such provision Indebtedness shall be deemed to constitute Indebtedness under the Credit Agreement for purposes of the definition of Senior Indebtedness.
(d) The Company will not, and will not permit any Guarantor to, Incur any Indebtedness if such Indebtedness is subordinate in right of payment to any Senior Indebtedness unless such Indebtedness is pari passu with, or subordinated in right of payment to, the Notes or any Note Guarantee; provided that the foregoing shall not apply to distinctions between categories of Senior Indebtedness that exist by reason of Liens or Guarantees arising or created in respect of Purchase Money some but not all such Senior Indebtedness or priorities of paydown, from proceeds of collateral or otherwise, among classes or tranches of any issue of Senior Indebtedness.
Appears in 1 contract
Sources: Indenture (VHS of Phoenix Inc)
Limitation on Indebtedness. (1a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, incur, directly or indirectly, Incur any Indebtedness unless(including Acquired Indebtedness) other than the Notes, Indebtedness existing on the date of such incurrenceIssue Date, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), and Permitted Indebtedness; provided that the Company and its or a Restricted Subsidiaries Subsidiary may incur any or all of the following Indebtedness:
(a) Incur Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, thatif, after giving effect to any such incurrence, the aggregate principal amount Incurrence of such Indebtedness then outstanding does not exceed and the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program receipt and application of the Company proceeds therefrom, the ratio of Total Consolidated Indebtedness to Annualized Pro Forma Consolidated Operating Cash Flow would be less than or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject equal to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;8.0 to 1.0.
(b) For purposes of determining any particular amount of Indebtedness under this Section 4.8, 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. For purposes of determining compliance with this Section 4.8, (A) in the event that an item of Indebtedness meets the criteria of more than one of the Company owed to and held by a Restricted Subsidiary and types of Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results provided for in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness paragraph (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence of such Indebtedness by the issuer thereof;
(c) the Securities;
(d) Indebtedness outstanding as of the date of this Note (other than Indebtedness described in clause (A), (B) or (Ca) of this Section 3(d)(2));
(e) Refinancing 4.8 or described in the definition of Permitted Indebtedness, the Company shall classify such item of Indebtedness and only be required to include the amount and type of such Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1paragraph (a) or pursuant to clause (C) or (D) in one of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting the clauses in the definition of Interest Rate or Currency Protection Agreements directly related to Permitted Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause and (B) abovethe amount of Indebtedness issued at a price that is less than the principal amount at maturity or principal amount, in an as applicable, thereof shall be equal to the amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision liability in respect of Purchase Money Indebtednessthereof determined in conformity with GAAP.
Appears in 1 contract
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company may Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto, the Consolidated Coverage Ratio exceeds 2.0 2.00 to 11 if such Indebtedness is Incurred prior to February 15, 2002 or 2.25 to 1 if such Indebtedness is Incurred thereafter.
(2b) Notwithstanding the foregoing paragraph (1a), the Company and its the Restricted Subsidiaries may incur Incur any or all of the following Indebtedness:
(a1) Indebtedness incurred by the Company Incurred pursuant to the Credit Facility or any other revolving credit arrangementAgreement; provided, however, that, after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed (i) the sum of $425,000,000 plus the greater (x) of $175,000,000 75,000,000 and (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (By) below) and the sum of (iA) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (iiB) 85% of the book value of the accounts receivable receivables of the Company and its Restricted Subsidiaries (other than accounts receivable subject Subsidiaries, less the sum of all principal payments with respect to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPsuch Indebtedness made pursuant to Section 4.06;
(b2) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Wholly Owned Subsidiary; provided, however, that (i) any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Wholly Owned Subsidiary ceasing to be a Restricted Wholly Owned Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Wholly Owned Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereofobligor thereon and (ii) if the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Securities;
(c3) the Securities;
(d4) Indebtedness outstanding as of on the date of this Note Issue Date (other than Indebtedness described in clause (A1), (B2) or (C3) of this Section 3(d)(24.03(b));
(e5) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Subsidiary was acquired by the Company (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by the Company); provided, however, that on the date of such acquisition and after giving effect thereto, the Company would have been able to Incur at least $1.00 of additional Indebtedness pursuant to Section 4.03(a);
(6) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(14.03(a) or pursuant to clause (C3), (4) or (D5) of this Section 3(d)(24.03(b) or this clause (E6); provided, however, that to the extent such Refinancing Indebtedness directly or indirectly Refinances Indebtedness of a Subsidiary Incurred pursuant to clause (5), such Refinancing Indebtedness shall be Incurred only by such Subsidiary;
(f7) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunderIncurred by the Company pursuant to this Indenture;
(g) Indebtedness incurred 8) any Guarantee by a Receivables Subsidiary, other than Subsidiary Guarantor of any Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant permitted to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees be Incurred by the Company or the Company's any Restricted Subsidiaries of Indebtedness otherwise permitted Subsidiary pursuant to be incurred under the Indenture;this Section 4.03(b); and
(j9) Indebtedness incurred by of the Company in an aggregate principal amount which, together with all other Indebtedness of the Company and the Restricted Subsidiaries outstanding on the date of such incurrence which was incurred pursuant to Incurrence (other than Indebtedness permitted by clauses (1) through (8) of this clause (JSection 4.03(b) or Section 4.03(a), ) does not exceed $55,000,000. With respect 25,000,000.
(c) Notwithstanding the foregoing, the Company shall not Incur any Indebtedness pursuant to Section 4.03(b) if the proceeds thereof are used, directly or indirectly, to Refinance any Subordinated Obligations unless such Indebtedness permitted under shall be subordinated to the Securities to at least the same extent as such Subordinated Obligations.
(d) For purposes of determining compliance with this Section 3(d)(2)(J4.03, (i) no in the event that an item of Indebtedness meets the criteria of more than $20,000,000 one of the types of Indebtedness described above, the Company, in its sole discretion, will classify such item of Indebtedness and only be required to include the amount and type of such Indebtedness in one of the above clauses and (ii) an item of Indebtedness may be incurred pursuant divided and classified in more than one of the types of Indebtedness described herein.
(e) Notwithstanding Section 4.03(a) or 4.03(b), neither the Company nor any Restricted Subsidiary shall Incur (i) any Indebtedness if such Indebtedness is subordinate or junior in ranking in any respect to any Senior Indebtedness unless such Indebtedness is Senior Subordinated Indebtedness of such Person or is expressly subordinated in right of payment to Senior Subordinated Indebtedness of such Person or (ii) any Secured Indebtedness that is not Senior Indebtedness of such Person unless contemporaneously therewith effective provision in respect is made to secure the Securities or the Subsidiary Guaranty of Purchase Money Indebtednesssuch Person, as the case may be, equally and ratably with such Secured Indebtedness for so long as such Secured Indebtedness is secured by a Lien.
Appears in 1 contract
Sources: Indenture (King Pharmaceuticals Inc)
Limitation on Indebtedness. (1a) (i) The Company shall will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, incur, directly or indirectly, create, incur, assume, guarantee or otherwise become liable with respect to (collectively, "incur") any Indebtedness unless, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1including without limitation Acquired Indebtedness), and (ii) the Company will not permit any of its Restricted Subsidiaries to issue (except if issued to or owned beneficially and of record by the Company or any of its Restricted Subsidiaries) any Preferred Stock; provided that (x) the Company and its Restricted Subsidiaries may incur any or all of the following Indebtedness:
Permitted Indebtedness and (ay) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, thatmay incur Indebtedness if, after giving effect thereto, (1) the Consolidated Fixed Charge Coverage Ratio on the date thereof would be at least 2.25 to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries 1.00 and (ii2) 85% of the book value of Consolidated Indebtedness Ratio on the accounts receivable of the Company and its Restricted Subsidiaries (other date thereof would be not more than accounts receivable subject 4.00 to any Receivables Program of the Company or any Restricted Subsidiary)1.00, in each case determined in accordance with GAAP;on a pro forma basis as if the incurrence of such additional Indebtedness, and the application of the net proceeds therefrom, had occurred at the beginning of the four-quarter period used to calculate the Company's Consolidated Fixed Charge Coverage Ratio.
(b) The Company will not, and will not permit any Subsidiary Guarantor to, incur any Indebtedness of the Company owed that is expressly subordinated to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence of such Indebtedness by the issuer thereof;
(c) the Securities;
(d) Indebtedness outstanding as of the date of this Note (other than Indebtedness described in clause (A), (B) or (C) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on or such Subsidiary Guarantor unless such Indebtedness by its terms is also expressly made subordinated to the date CGD Note, in the case of such incurrence which was incurred pursuant to this clause (J)the Company, does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 or the relevant Subsidiary Guarantee, in the case of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtednessa Subsidiary Guarantor.
Appears in 1 contract
Limitation on Indebtedness. (1) The Company shall not, and -------------------------- shall not permit any Restricted Subsidiary of its Subsidiaries to, incur, directly or indirectly, Incur any Indebtedness unless, (other than the Notes and Indebtedness existing on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1Closing Date), ; provided that the Company and its Restricted Subsidiaries may incur any or all of the following Indebtedness:
(a) Incur Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, thatif, after giving effect to any the Incurrence of such incurrenceIndebtedness and the receipt and application of the proceeds therefrom, the Consolidated Leverage Ratio would be greater than zero and less than 5:1.
(i) Indebtedness outstanding at any time in an aggregate principal amount of such not to exceed $100 million; (ii) Indebtedness then outstanding does not exceed the greater of $175,000,000 owed (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of A) to the Company evidenced by a promissory note or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% to any Subsidiary of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
(b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted SubsidiaryCompany; provided, however, provided that any subsequent issuance or transfer of any Capital Stock event which results in any such Restricted Subsidiary of the Company ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Subsidiaryanother Subsidiary of the Company) shall be deemed, in each case, to constitute the incurrence an Incurrence of such Indebtedness not permitted by this clause (ii); (iii) Indebtedness issued in exchange for, or the net proceeds of which are used to refinance or refund, then outstanding Indebtedness (other than Indebtedness Incurred under clause (i), (ii), (iv), (viii) or (ix) of this paragraph) and any refinancings thereof in an amount not to exceed the amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses); provided that Indebtedness the proceeds of which are used to refinance or refund the Notes or Indebtedness that is pari passu with, or is subordinated in right of payment to, the Notes shall only be permitted under this clause (iii) if: (A) in case the Notes are refinanced in part or the Indebtedness to be refinanced is pari passu with the Notes, such new Indebtedness, by its terms or by the issuer thereof;
terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made pari passu with, or subordinate in right of payment to, the remaining Notes, (cB) in case the Securities;
Indebtedness to be refinanced is subordinated in right of payment to the Notes, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the same extent that the Indebtedness to be refinanced is subordinated to the Notes and (dC) Indebtedness outstanding such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded; and provided further that in no event may Indebtedness of the Company be refinanced by means of any Indebtedness of any Subsidiary of the Company pursuant to this Note (other than Indebtedness described in clause (iii); (iv) Indebtedness, (A)) in respect of performance, surety or appeal bonds provided in the ordinary course of business, (B) under Currency Agreements and Interest Rate Agreements; provided that such agreements (a) are designed solely to protect the Company or its Subsidiaries against fluctuations in foreign currency exchange rates or interest rates and (b) do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder; and (C) arising from agreements providing for indemnification, adjustment of this Section 3(d)(2));
purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or a Subsidiary of the Company (e) Refinancing Indebtedness in respect other than Guarantees of Indebtedness incurred pursuant to Section 3(d)(1) Incurred by any Person acquiring all or pursuant to clause (C) any portion of such business, assets or (D) a Subsidiary of this Section 3(d)(2) or this clause (Ethe Company for the purpose of financing such acquisition);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an a principal amount not exceeding 95% to exceed the gross proceeds actually received by the Company or of the aggregate unpaid balance of the Receivables and Related Assets of its Subsidiaries in connection with such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
disposition; (hv) Indebtedness of the Company and the Company's Restricted Subsidiaries , to the extent the net proceeds thereof are concurrently promptly (A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change in Control or (B) deposited to defease all Securities pursuant the Notes as described below under Section 8.2; (vi) Guarantees of the Notes and Guarantees of Indebtedness of the Company by any of its Subsidiaries; provided any such Subsidiary Guarantees the Notes; (vii) Indebtedness (including Guarantees) Incurred to finance the cost (including the cost of design, development, acquisition, construction, insurance, installation, improvement, transportation, launch or integration) to acquire satellites, ground systems, image processing software and systems or other tangible assets used or useful in the satellite imaging and related businesses of the Company and its Subsidiaries (including acquisitions by way of Capitalized Leases and acquisitions of the Capital Stock of a Person that becomes a Subsidiary of the Company to the terms extent of the Indenture fair market value of the satellites, ground systems, image processing software and systems or all New Notes pursuant to the terms herein;
(iother tangible assets so acquired) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries a Subsidiary of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other after the Closing Date; (viii) Indebtedness of the Company outstanding on not to exceed, at any one time outstanding, two times: (A) the date Net Cash Proceeds received by the Company after the Closing Date as a capital contribution or from the issuance and sale of its Capital Stock (other than Redeemable Stock) to a Person that is not a Subsidiary of the Company, to the extent (I) such capital contribution or Net Cash Proceeds have not been used pursuant to clause (ii)(b) of the first paragraph or clause (ii), (iii) or (iv) of the second paragraph of Section 4.3 described below to make a Restricted Payment and (II) if such capital contribution or Net Cash Proceeds are used to consummate a transaction pursuant to which the Company Incurs Acquired Indebtedness, the amount of such incurrence which was incurred Net Cash Proceeds exceeds one-half of the amount of Acquired Indebtedness so Incurred, and (B) 80% of the fair market value of property, other than cash and cash equivalents, received by the Company after the Closing Date from the sale of its Capital Stock (other than Redeemable Stock) to a Person that is not a Subsidiary of the Company, to the extent (I) such capital contribution or sale of Capital Stock has not been used pursuant to this clause (Jii), (iii) or (iv) of the second paragraph of Section 4.3 described below to make a Restricted Payment and (II) if such capital contribution or Capital Stock is used to consummate a transaction pursuant to which the Company Incurs Acquired Indebtedness, 80% of the fair market value of the property received exceeds one-half of the amount of Acquired Indebtedness so Incurred, provided that such Indebtedness does not exceed $55,000,000. With respect mature prior to the Stated Maturity of the Notes and has an Average Life longer than the Notes; (ix) Acquired Indebtedness; (x) Strategic Subordinated Indebtedness; and (xi) subordinated Indebtedness of the Company, in addition to Indebtedness permitted under clauses (i) through (x) above, in aggregate principal amount outstanding at any time not to exceed $100,000,000. Notwithstanding any other provision of this "Limitation on Indebtedness" covenant, the maximum amount of Indebtedness that the Company or a Subsidiary of the Company may Incur pursuant to this Section 3(d)(2)(J4.2 shall not be deemed to be exceeded, with respect to any outstanding Indebtedness due solely to the result of fluctuations in the exchange rates of currencies. For purposes of determining any particular amount of Indebtedness under this Section 4.2, (1) no 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 and (2) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.4 described below shall not be treated as Indebtedness. For purposes of determining compliance with this Section 4.2, in the event that an item of Indebtedness meets the criteria of more than $20,000,000 one of the types of Indebtedness described in the above clauses, the Company, in its sole discretion, shall classify, and from time to time may reclassify, such item of Indebtedness and only be incurred pursuant required to include the amount and type of such provision Indebtedness in respect one of Purchase Money Indebtednesssuch clauses.
Appears in 1 contract
Sources: Indenture (Earthwatch Inc)
Limitation on Indebtedness. (1a) The Company Borrower shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Borrower or any Subsidiary Guarantor may Incur Indebtedness unless, if on the date of such incurrence, Incurrence and after giving effect thereto and the application of the proceeds therefrom the Consolidated Coverage Ratio exceeds 2.0 to 1would be greater than 2.0:1.0.
(2b) Notwithstanding the foregoing paragraph (1a), the Company Borrower and its Restricted Subsidiaries may incur any or all of Incur the following Indebtedness:
(a1) (x) U.S. Bank Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the in an aggregate principal amount of such Indebtedness then outstanding does not to exceed the greater of (A) $175,000,000 (3,000,000,000, less the then outstanding principal aggregate amount of all prepayments of principal applied to permanently reduce any such Indebtedness arising under any Receivables Program in satisfaction of the Company or any Restricted SubsidiaryBorrower's obligations under Section 6.04 of the Second Lien Agreement (as in effect on the date hereof), other than Indebtedness described in clause and (B) below) and the sum of (i) 5060% of the book value of the inventory of the Company Borrower and its Restricted Subsidiaries and plus (ii) 8580% of the book value of the accounts receivable of the Company Borrower and its Restricted Subsidiaries (other than any accounts receivable subject to any Receivables Program of pledged, sold or otherwise transferred or encumbered by the Company Borrower or any Restricted SubsidiarySubsidiary in connection with a Qualified Receivables Transaction), in each case determined case, as of the end of the most recent fiscal quarter for which financial statements have been filed with the SEC; provided that not more than $1,750,000,000 of the Indebtedness outstanding at any time under this clause (x) shall benefit from first priority security interests in accordance with GAAPthe Collateral, and (y) European Bank Indebtedness in an aggregate principal amount not to exceed E525,000,000; provided, however, that the amount of Indebtedness that may be Incurred pursuant to this clause (1) shall be reduced by any amount of Indebtedness Incurred and then outstanding pursuant to the election provision of clause (10)(A)(ii) below;
(b2) Indebtedness of the Company Borrower owed to and held by a any Restricted Subsidiary and or Indebtedness of a Restricted Subsidiary owed to and held by the Company Borrower or a any Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of any such Indebtedness (other than except to the Company Borrower or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereof;
(c3) Indebtedness (A) outstanding on the SecuritiesRestatement Date (other than the Indebtedness described in clauses (1) and (2) above and clause (12) below), and (B) consisting of Refinancing Indebtedness Incurred in respect of any Indebtedness described in this clause (3) (including Indebtedness that is Refinancing Indebtedness) or the foregoing paragraph (a);
(dA) Indebtedness of a Restricted Subsidiary Incurred and outstanding as of on or prior to the date of this Note on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (other than Indebtedness described Incurred in clause (Acontemplation of, in connection with, as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Subsidiary of or was otherwise acquired by the Borrower); provided, however, that on the date that such Restricted Subsidiary is acquired by the Borrower, (Bi) or (C) the Borrower would have been able to Incur $1.00 of this Section 3(d)(2));
(e) Refinancing additional Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant foregoing paragraph (a) after giving effect to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date Incurrence of such incurrence which was incurred Indebtedness pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J4) no more than $20,000,000 of Indebtedness may be incurred pursuant or (ii) the Consolidated Coverage Ratio immediately after giving effect to such provision Incurrence and acquisition would be greater than such ratio immediately prior to such transaction and (B) Refinancing Indebtedness Incurred by a Restricted Subsidiary in respect of Purchase Money Indebtedness.Indebtedness Incurred by such Restricted Subsidiary pursuant to this clause (4);
(5) Indebtedness (A) in respect of performance bonds, bankers' acceptances, letters of credit and surety or appeal bonds entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business, and (B) Hedging Obligations entered into in the ordinary course of business to hedge risks with respect to the Borrower's or a Restricted Subsidiary's interest rate, currency or raw materials pricing exposure and not entered into for speculative purposes;
Appears in 1 contract
Sources: First Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Limitation on Indebtedness. (1a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, incur, directly or indirectly, any Indebtedness unless, on the date of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2) Notwithstanding the foregoing paragraph (1), the Company and its Restricted Subsidiaries may incur to, Incur any or all of Indebtedness (other than the following Indebtedness:
(a) Notes and Indebtedness incurred by existing on the Closing Date); provided that the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, thatmay Incur Indebtedness if, after giving effect to any the Incurrence of such incurrenceIndebtedness and the receipt and application of the proceeds therefrom, the Consolidated Leverage Ratio would be greater than zero and less than 6 to 1. Notwithstanding the foregoing, the Company and any Restricted Subsidiary (except as specified below) may Incur each and all of the following:
(i) Indebtedness outstanding at any time that is (A) Incurred to finance the purchase, construction, launch, insurance for and other costs with respect to Orion 2 and Orion 3 or (B) in an aggregate principal amount not to exceed (1) until Orion 2 or Orion 3 has been successfully delivered in orbit, $50 million, (2) after the first of such Indebtedness then outstanding does not exceed the greater of Orion 2 or Orion 3 has been successfully delivered in orbit, $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries 100 million and (ii3) 85% after the second of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company Orion 2 or any Restricted Subsidiary)Orion 3 has been successfully delivered in orbit, $150 million, in each case determined in accordance with GAAPunder this clause (i)(B);
(bii) Indebtedness of the Company owed (A) to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a (B) to any of its Restricted SubsidiarySubsidiaries; provided, however, provided that any subsequent issuance or transfer of any Capital Stock event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence an Incurrence of such Indebtedness not permitted by the issuer thereofthis clause (ii);
(c) the Securities;
(diii) Indebtedness issued in exchange for, or the net proceeds of which are used to refinance or refund, then outstanding Indebtedness, other than Indebtedness Incurred under clause (i)(B), (ii), (iv), (vi) or (viii) of this paragraph, and any refinancings thereof in an amount not to exceed the amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses); provided that Indebtedness the proceeds of which are used to refinance or refund the Notes, the Note Guarantee or Indebtedness that is pari passu with, or subordinated in right of payment to, the Notes shall only be permitted under this clause (iii) if (A) in case the Notes or the Note Guarantee are refinanced in part or the Indebtedness to be refinanced is pari passu with the Notes or the Note Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made pari passu with, or subordinate in right of payment to, the remaining Notes or the Note Guarantee, as the case may be, (B) in case the Indebtedness to be refinanced is subordinated in right of payment to the Notes or the Note Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes or the Note Guarantee at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes or the Note Guarantee, as the case may be, and (C) such new Indebtedness, determined as of the date of this Note Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded;
(other than iv) Indebtedness described in clause (A)) in respect of performance, surety or appeal bonds provided in the ordinary course of business, (B) under Currency Agreements and Interest Rate Agreements; provided that such agreements (a) are designed solely to protect the Company or its Subsidiaries against fluctuations in foreign currency exchange rates or interest rates and (b) do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder and (C) arising from agreements providing for indemnification, adjustment of this Section 3(d)(2purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company (other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary of the Company for the purpose of financing such acquisition)), in a principal amount not to exceed the gross proceeds actually received by the Company or any Restricted Subsidiary in connection with such disposition;
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(hv) Indebtedness of the Company and the Company's Restricted Subsidiaries , to the extent the net proceeds thereof are concurrently promptly (A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change in Control or (B) deposited to defease all Securities pursuant to the terms Notes as described in Section 8.02 of this Indenture; (vi) Guarantees of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries and Guarantees of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on by any Restricted Subsidiary provided the date Guarantee of such incurrence which was incurred pursuant to Indebtedness is permitted by and made in accordance with the Section 4.07 of this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.Indenture;
Appears in 1 contract
Limitation on Indebtedness. (1a) The Company shall not, --------------------------- and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness unlessexcept that the Company and the Issuer may Incur Indebtedness if, on the date of such incurrenceafter giving pro forma effect thereto, the Consolidated Coverage Ratio exceeds 2.0 to 11.0.
(2b) Notwithstanding the foregoing paragraph (1a), the Company and its Restricted Subsidiaries may incur any or all of Incur the following Indebtedness:
(a1) Indebtedness incurred by of the Company or any Restricted Subsidiary Incurred pursuant to the any Revolving Credit Facility or any other revolving credit arrangementFacility; provided, however, that, -------- ------- immediately after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such all Indebtedness incurred under this clause (1) and then outstanding does not exceed the greater of (A) $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause 50.0 million and (B) below) and the sum of (ix) $20.0 million, (y) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (iiz) 8580% of the book value of the accounts receivable receivables of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAP;
(b) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted SubsidiarySubsidiaries; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to Indebtedness may only be Incurred by a Restricted Subsidiary or any subsequent transfer if such Indebtedness, when added together with the amount of such all other Indebtedness Incurred by Restricted Subsidiaries pursuant to this clause (other than 1) and then outstanding, does not exceed an amount equal to 50% of the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence greater of such Indebtedness by the issuer thereof;
(cx) the Securities;
(d) Indebtedness outstanding as of the date of this Note (other than Indebtedness described amount in clause (A), ) above and (By) or (C) of this Section 3(d)(2));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described the amount determined in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.
Appears in 1 contract
Sources: Indenture (Chippac LTD)
Limitation on Indebtedness. (1a) The Company shall will not, and shall will not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness unless, on the date of immediately after giving effect to such incurrenceIncurrence, the Consolidated Coverage Ratio exceeds 2.0 2.00 to 11 if such Indebtedness is Incurred prior to June 15, 1999, and 2.25 to 1 if such Indebtedness is Incurred thereafter.
(2b) Notwithstanding the foregoing paragraph (1Section 4.3(a), the Company and its Restricted Subsidiaries may incur Incur any or all of the following Indebtedness:
(ai) Indebtedness incurred by the Company and other Obligations Incurred pursuant to the Bank Credit Facility or any other revolving credit arrangementAgreements; provided, however, that, after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such Indebtedness and other Obligations then outstanding outstanding, does not exceed the greater of (x) $175,000,000 110 million and (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (By) below) and the sum of (iA) 5060% of the net book value of the inventory of the Company and its Restricted Subsidiaries and Subsidiaries, (iiB) 8590% of the net book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary)Subsidiaries, in each case determined in accordance with GAAPGAAP and (C) $70 million;
(bii) Indebtedness represented by the Securities issued on the Issue Date, the Exchange Securities and the Series A/B Securities;
(iii) Indebtedness outstanding on the Series A/B Issue Date (other than Indebtedness described in clause (i) of this Section 4.3(b)), including, without limitation, the Existing Preferred Stock and Indebtedness incurred after the Series A/B Issue Date in compliance with the Existing Indenture;
(iv) Indebtedness of the Company owed to and held by a Restricted any Wholly Owned Subsidiary and or Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Wholly Owned Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Wholly Owned Subsidiary ceasing to be a Restricted Wholly Owned Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Wholly Owned Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereof;
(c) the Securities;
(d) Indebtedness outstanding as of the date of this Note (other than Indebtedness described in clause (A), (B) or (C) of this Section 3(d)(2));
(ev) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(136 paragraph (a) or pursuant to clause (C) or i), (D) of this Section 3(d)(2ii), (iii) or this clause (Ev) of this Section 4.3(b);
(fvi) Indebtedness in respect of performance bonds, bankers' acceptances, letters of credit and surety or appeal bonds entered into by the Company and the Restricted Subsidiaries in the ordinary course of their business;
(vii) Hedging Obligations consisting of Interest Rate or Agreements and Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiaryentered into in the ordinary course of business and not for the purpose of speculation; provided, other than Indebtedness described in clause (B) abovehowever, that, in an amount the case of Currency Agreements and Interest Rate Agreements, such Currency Agreements and Interest Rate Agreements do not exceeding 95% of increase the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date at any time other than as a result of such incurrence which was incurred pursuant to this clause (J)fluctuations in foreign currency exchange rates or interest rates or by reason of fees, does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.indemnities and compensation payable thereunder;
Appears in 1 contract
Sources: Indenture (Oxford Automotive Inc)
Limitation on Indebtedness. (1a) The Company Borrower shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Borrower or any Subsidiary Guarantor may Incur Indebtedness unless, if on the date of such incurrence, Incurrence and after giving effect thereto and to the application of the proceeds therefrom the Consolidated Coverage Ratio exceeds 2.0 to 1would be greater than 2.0:1.0.
(2b) Notwithstanding the foregoing paragraph (1a), the Company Borrower and its Restricted Subsidiaries may incur any or all of Incur the following Indebtedness:
(a1) (x) U.S. Bank Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the in an aggregate principal amount of such Indebtedness then outstanding does not to exceed the greater of (A) $175,000,000 (3,500,000,000, less the then outstanding principal aggregate amount of all prepayments of principal applied to permanently reduce any such Indebtedness arising under any Receivables Program in satisfaction of the Company or any Restricted SubsidiaryBorrower’s obligations under Section 6.04 of the Second Lien Agreement (as in effect on the date hereof), other than Indebtedness described in clause and (B) below) and the sum of (i) 5060% of the book value of the inventory of the Company Borrower and its Restricted Subsidiaries and plus (ii) 8580% of the book value of the accounts receivable of the Company Borrower and its Restricted Subsidiaries (other than any accounts receivable subject to any Receivables Program of pledged, sold or otherwise transferred or encumbered by the Company Borrower or any Restricted SubsidiarySubsidiary in connection with a Qualified Receivables Transaction), in each case determined case, as of the end of the most recent fiscal quarter for which financial statements have been filed with the SEC; provided that not more than $2,250,000,000 of the Indebtedness outstanding at any time under this clause (x) shall benefit from first priority security interests in accordance with GAAPthe Collateral, and (y) European Bank Indebtedness in an aggregate principal amount not to exceed €550,000,000; provided, however, that the amount of Indebtedness that may be Incurred pursuant to this clause (1) shall be reduced by any amount of Indebtedness Incurred and then outstanding pursuant to the election provision of clause (10)(A)(ii) below;
(b2) Indebtedness of the Company Borrower owed to and held by a any Restricted Subsidiary and or Indebtedness of a Restricted Subsidiary owed to and held by the Company Borrower or a any Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock which event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of any such Indebtedness (other than except to the Company Borrower or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereof;
(c3) Indebtedness (A) outstanding on the SecuritiesRestatement Date (other than the Indebtedness described in clauses (1) and (2) above and clause (12) below), and (B) consisting of Refinancing Indebtedness Incurred in respect of any Indebtedness described in this clause (3) (including Indebtedness that is Refinancing Indebtedness) or the foregoing paragraph (a);
(d4) (A) Indebtedness of a Restricted Subsidiary Incurred and outstanding as of on or prior to the date of this Note on which such Restricted Subsidiary was acquired by the Borrower or a Restricted Subsidiary (other than Indebtedness described Incurred in contemplation of, in connection with, as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Subsidiary of or was otherwise acquired by the Borrower); provided, however, that on the date that such Restricted Subsidiary is acquired by the Borrower, (i) the Borrower would have been able to Incur $1.00 of additional Indebtedness pursuant to the foregoing paragraph (a) after giving effect to the Incurrence of such Indebtedness pursuant to this clause (A), 4) or (ii) the Consolidated Coverage Ratio immediately after giving effect to such Incurrence and acquisition would be greater than such ratio immediately prior to such transaction and (B) or Refinancing Indebtedness Incurred by a Restricted Subsidiary in respect of Indebtedness Incurred by such Restricted Subsidiary pursuant to this clause (C) of this Section 3(d)(2)4);
(e5) Indebtedness (A) in respect of performance bonds, Trade Acceptances, bank guarantees, letters of credit and surety or appeal bonds entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business, and (B) Hedging Obligations entered into in the ordinary course of business to hedge risks with respect to the Borrower’s or a Restricted Subsidiary’s interest rate, currency or raw materials pricing exposure and not entered into for speculative purposes;
(6) Purchase Money Indebtedness, Capitalized Lease Obligations and Attributable Debt and Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred Incurrence that, when added to all other Indebtedness Incurred pursuant to this clause (J)6) and then outstanding, does will not exceed the greater of (A) $55,000,000. With respect to 800,000,000 and (B) 5.0% of Consolidated assets of the Borrower as of the end of the most recent fiscal quarter for which financial statements have been filed with the SEC;
(7) Indebtedness Incurred by a Receivables Entity in a Qualified Receivables Transaction;
(8) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of a Financial Officer’s becoming aware of its Incurrence;
(9) any Guarantee by the Borrower or a Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary so long as the Incurrence of such Indebtedness or other obligations by the Borrower or such Restricted Subsidiary is permitted under the terms of this Section 3(d)(2)(J) no more Agreement (other than $20,000,000 of Indebtedness may be incurred Incurred pursuant to such provision clause (4) above);
(10) (A) Indebtedness of Foreign Restricted Subsidiaries in respect of Purchase Money Indebtedness.an aggregate principal amount that, when added to all other Indebtedness Incurred pursuant to this clause (10)(A) and then outstanding, will not exceed (i) $1,500,000,000 plus (ii) any amount then permitted to be Incurred pursuant to clause (1) above that the Borrower instead elects to Incur pursuant to this clause (10)(A); and
Appears in 1 contract
Sources: First Lien Credit Agreement (Goodyear Tire & Rubber Co /Oh/)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company shall be entitled to Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto on a pro forma basis no Default has occurred and is continuing and, the Consolidated Coverage Ratio exceeds 2.0 to 1.
(2b) Notwithstanding the foregoing paragraph (1a), the Company and its the Restricted Subsidiaries may incur shall be entitled to Incur any or all of the following Indebtedness:
(ai) Indebtedness incurred Incurred by the Company and any Foreign Restricted Subsidiary pursuant to the any Credit Facility or any other revolving credit arrangement; Facilities or, provided, however, that, immediately after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such all Indebtedness Incurred under this clause (b) and then outstanding does not exceed the greater of (A) $175,000,000 (750 million less the then outstanding sum of all principal amount of payments with respect to such Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause pursuant to Section 4.15(a)(iii)(1) and (B) below) and the sum of (ix) 5060% of the book value of the inventory of the Company and its Restricted Subsidiaries and (iiy) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries Subsidiaries, provided further, however, that in no event shall the aggregate principal amount of all Indebtedness Incurred under this clause (other than accounts receivable subject to i) at any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPtime outstanding exceed $1.2 billion;
(bii) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Wholly Owned Subsidiary; provided, however, that (A) any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Wholly Owned Subsidiary ceasing to be a Restricted Wholly Owned Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Wholly Owned Subsidiary) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereofobligor thereon and (B) if the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes;
(ciii) the SecuritiesNotes and the Exchange Notes (other than any Additional Notes) and any other Indebtedness of the Company or any Restricted Subsidiary outstanding on the Issue Date;
(div) Indebtedness Incurred or outstanding as of on or before the date of this Note Separation Date (other than Indebtedness described in clause (A), (Bi) or any other clause (Cother than clause (xvii)) of this Section 3(d)(24.12(b));
, to the extent it does not exceed (ew) Refinancing Indebtedness in respect the amount of Indebtedness incurred pursuant indebtedness that is Attributed to Section 3(d)(1the U. S. Steel Group on its balance sheet as of March 31, 2001 less (x) or pursuant to clause (C) or (D) the amount of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than any Indebtedness described in clause (Biii) above, of this Section 4.12(b) or any Indebtedness described in an amount not exceeding 95% clause (vi) or (vii) of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(hthis Section 4.12(b) Indebtedness of that is Incurred by the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms hereinFinancial Matters Agreement less (y) $629 million plus (z) $40 million;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.
Appears in 1 contract
Sources: Indenture (Usx Corp)
Limitation on Indebtedness. (1a) The Company Issuer shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Issuer and the Restricted Subsidiaries shall be entitled to Incur Indebtedness unlessif, on the date of such incurrenceIncurrence and after giving effect thereto on a pro forma basis, the Consolidated Coverage Ratio exceeds 2.0 would be at least 2.00 to 11.00; provided further that Restricted Subsidiaries that are not Guarantors may not Incur Indebtedness pursuant to this Section 4.03(a) if, after giving pro forma effect to such Incurrence, the aggregate amount of Indebtedness of Restricted Subsidiaries that are not Guarantors Incurred pursuant to this Section 4.03(a) would exceed $20.0 million.
(2b) Notwithstanding Paragraph (a) shall not prohibit the foregoing paragraph (1), Incurrence by any of the Company and Issuer or its Restricted Subsidiaries may incur of any or all of the following Indebtedness:
(a1) Indebtedness incurred Incurred by the Company Issuer and the Restricted Subsidiaries pursuant to the Credit Facility or Facilities in an aggregate principal amount at any one time outstanding not to exceed the greater of:
(A) $450 million, and
(B) the sum of (x) 87.5% of the amounts of all accounts receivable owned by the Issuer and its Restricted Subsidiaries at the end of the most recent fiscal quarter and (y) 70% of the amounts of all inventory owned by the Issuer and its Restricted Subsidiaries at the end of the most recent fiscal quarter, in each case plus (in the case of any Refinancing) the aggregate amount of fees, underwriting discounts, premiums, prepayment penalties and other revolving credit arrangement; providedcosts and expenses Incurred in connection with the Refinancing, however, that, after giving effect to any such incurrence, less the aggregate principal amount of such Indebtedness Incurred under Section 4.03(b)(15) hereof then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 50% of the book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPoutstanding;
(b2) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company Issuer or a any Restricted Subsidiary; provided, however, that (A) any subsequent issuance or transfer of any Capital Stock which that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (to a Person other than to the Company Issuer or a any Restricted Subsidiary) Subsidiary shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereofobligor thereon, (B) if the Issuer is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes and (C) if a Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations of such Guarantor with respect to its Guarantee;
(c3) the SecuritiesNotes (other than any Additional Notes), including in each case any Guarantee thereof by a Subsidiary Guarantor;
(d4) Indebtedness outstanding as of on the date of this Note Issue Date (other than Indebtedness described in clause (A1), (B2) or (C3) of this Section 3(d)(24.03(b));
(e5) Indebtedness (i) of the Issuer or any Restricted Subsidiary Incurred or issued to finance the acquisition by the Issuer or the Restricted Subsidiary of any Person, property or assets or (ii) of Persons that are acquired by the Issuer or any Restricted Subsidiary or merged into or consolidated with the Issuer or any Restricted Subsidiary in accordance with the terms of this Indenture; provided that, on the date of such acquisition and after giving pro forma effect thereto, (A) the Issuer would have been entitled to Incur at least $1.00 of additional Indebtedness pursuant to Section 4.03(a) hereof or (B) the Consolidated Coverage Ratio of the Issuer and the Restricted Subsidiaries would have been equal to or greater than the Consolidated Coverage Ratio immediately prior to such acquisition, merger or consolidation;
(6) Refinancing Indebtedness in respect of Indebtedness incurred Incurred pursuant to Section 3(d)(14.03(a) hereof or pursuant to clause (C3), (4), (5) or (D19) of this Section 3(d)(24.03(b) or this clause (E6);
(f7) Hedging Obligations consisting that are Incurred for bona fide hedging purposes of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunderthe Issuer and its Restricted Subsidiaries (and not for speculative purposes) and Permitted Bank Product Obligations;
(g8) Obligations in respect of customs, stay, appeal, performance, bid and surety bonds and other similar types of bonds and performance and completion guarantees and other obligations of a like nature provided by or on behalf of the Issuer or any Restricted Subsidiary or obligations in respect of letters of credit related thereto, in each case in the ordinary course of business;
(9) Indebtedness incurred arising from the honoring by a Receivables bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of its Incurrence;
(10) (i) Indebtedness consisting of the Guarantee of a Guarantor, (ii) any guarantee by the Issuer or any Guarantor of Indebtedness (other than any Indebtedness Incurred by a Restricted Subsidiary that is not a Guarantor pursuant to Section 4.03(b) (5), (15) or (16) hereof) of any of the Issuer or its Restricted Subsidiaries so long as the Incurrence of such Indebtedness Incurred by the Issuer or such Restricted Subsidiary is permitted under the terms of this Indenture, and (iii) the guarantee by any Restricted Subsidiary that is not a Guarantor of any Indebtedness of a Restricted Subsidiary that is not a Guarantor; provided that if such Indebtedness is by its express terms subordinated in right of payment to the Senior Indebtedness of the borrower then any such guarantee with respect to such Indebtedness shall be subordinated in right of payment to the Senior Indebtedness of the Person Guaranteeing such Indebtedness;
(11) the accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock;
(12) Indebtedness arising from agreements of the Issuer or a Restricted Subsidiary providing for indemnification, adjustment of purchase price, earn out or similar obligations, in each case, Incurred or assumed in connection with the acquisition or disposition of any business, assets or a Subsidiary, other than Guarantees of Indebtedness described Incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; provided, however, that in clause the case of a disposition, the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds, including non-cash proceeds (Bthe fair market value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) aboveactually received by the Issuer and the Restricted Subsidiaries in connection with such disposition;
(13) Indebtedness consisting of Guarantees of loans or other extensions of credit made to or on behalf of officers, directors, employees or consultants of the Issuer or a Restricted Subsidiary for the purpose of permitting such Persons to purchase Capital Stock of the Issuer or any Parent Entity of the Issuer, as the case may be, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary to exceed $5.0 million at the any one time of such incurrence pursuant to a Receivables Programoutstanding;
(h14) Purchase Money Indebtedness Incurred by the Issuer or a Restricted Subsidiary, and any Refinancing Indebtedness Incurred to Refinance such Indebtedness, in an aggregate principal amount that, when added together with the amount of Indebtedness Incurred pursuant to this clause (14) and then outstanding, does not exceed the greater of (A) $100.0 million or (B) 5% of Total Assets at the date of determination;
(15) Indebtedness Incurred by a Receivables Subsidiary in a Qualified Receivables Transaction that is not recourse to the Issuer or any other Restricted Subsidiary (except for Standard Securitization Undertakings); provided, however, that, after giving effect to any such Incurrence, the aggregate principal amount of all Indebtedness Incurred under this clause (15) and then outstanding does not exceed, when aggregated with all Indebtedness outstanding under clause (3) of this Section 4.03(b), the maximum amount permitted under clause (1) of this Section 4.03(b);
(16) Indebtedness Incurred by a Foreign Subsidiary in an aggregate principal amount that, when added together with the amount of Indebtedness Incurred pursuant to this clause (16) and then outstanding, does not exceed $25.0 million;
(17) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease Issuer or of any Subsidiary Guarantor in an aggregate principal amount that, when taken together with all Securities other Indebtedness Incurred pursuant to this clause (17) and then outstanding, does not exceed the terms greater of (A) $100.0 million or (B) 5% of Total Assets at the Indenture or all New Notes pursuant to the terms hereindate of determination;
(i18) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture[reserved];
(j19) Indebtedness of the Issuer or any Restricted Subsidiary up to an amount equal to 100% of the Net Cash Proceeds received by the Issuer from the issuance or sale (other than to a Subsidiary) of its Capital Stock (other than Disqualified Stock) since the Issue Date; provided, however, that any such Net Cash Proceeds that are so received (i) shall be excluded for purposes of making Restricted Payments under Section 4.04(a)(3)(B) hereof and Sections 4.04(b)(1) and (b)(3) hereof and (ii) shall not constitute Excluded Contributions;
(20) Indebtedness incurred by the Company Issuer or any Restricted Subsidiary constituting reimbursement obligations with respect to letters of credit issued in an aggregate principal amount whichthe ordinary course of business, together including without limitation letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with all other 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 30 days following such drawing or incurrence;
(21) Indebtedness of the Company Issuer or any of its Restricted Subsidiaries supported by a letter of credit issued pursuant to any Credit Facilities in a principal amount not in excess of the stated amount of such letter of credit;
(22) Indebtedness of the Issuer or any Restricted Subsidiary to the extent the proceeds of such Indebtedness are deposited and used to defease or to satisfy and discharge all of the Notes pursuant to Article 8; and
(23) Indebtedness of the Issuer or any Restricted Subsidiary consisting of the financing of insurance premiums in the ordinary course of business.
(c) For purposes of determining compliance with this Section 4.03:
(1) any Indebtedness outstanding under the Credit Agreement on the Issue Date shall be treated as Incurred under clause (1) of paragraph (b) above;
(2) in the event that an item of Indebtedness (or any portion thereof) meets the criteria of more than one of the types of Indebtedness described above, the Issuer, in its sole discretion, shall classify such item of Indebtedness or any portion thereof at the time of Incurrence, and may later reclassify such item of Indebtedness or any portion thereof (other than as set forth in clause (c)(1) above), and shall only be required to include the amount and type of such Indebtedness in one of the above clauses;
(3) the Issuer shall be entitled to divide and classify (and reclassify) an item of Indebtedness in more than one of the types of Indebtedness described above; and
(4) notwithstanding anything in this Section 4.03 to the contrary, in the case of any Indebtedness incurred to Refinance Indebtedness initially incurred in reliance on a clause of Section 4.03(b) measured by reference to a percentage of Total Assets, accounts receivable or inventory at the time of Incurrence, if such Refinancing would cause the percentage of Total Assets, accounts receivable or inventory restriction to be exceeded if calculated based on the percentage of Total Assets, accounts receivable or inventory on the date of such incurrence refinancing, such percentage of Total Assets, accounts receivable or inventory restriction shall not be deemed to be exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being Refinanced, plus premiums (including tender premiums), defeasance, costs and fees in connection with such Refinancing.
(d) For purposes of determining compliance with any U.S. dollar denominated restriction on the Incurrence of Indebtedness where the Indebtedness Incurred is denominated in a different currency, the amount of such Indebtedness shall be the U.S. Dollar Equivalent determined on the date of the Incurrence of such Indebtedness; provided, however, that if any such Indebtedness denominated in a different currency is subject to a Currency Agreement with respect to U.S. dollars covering all principal, premium, if any, and interest payable on such Indebtedness, the amount of such Indebtedness expressed in U.S. dollars shall be as provided in such Currency Agreement. The principal amount of any Refinancing Indebtedness Incurred in the same currency as the Indebtedness being Refinanced shall be the U.S. Dollar Equivalent of the Indebtedness Refinanced, except to the extent that (1) such U.S. Dollar Equivalent was determined based on a Currency Agreement, in which was incurred case the Refinancing Indebtedness shall be determined in accordance with the preceding sentence, and (2) the principal amount of the Refinancing Indebtedness exceeds the principal amount of the Indebtedness being Refinanced, in which case the U.S. Dollar Equivalent of such excess shall be determined on the date such Refinancing Indebtedness is Incurred.
(e) The amount of Indebtedness of any Person at any time in the case of a revolving credit or similar facility shall be the total amount of funds borrowed and then outstanding. In addition, for purposes of determining any particular amount of Indebtedness under this Section 4.03, Guarantees, Liens or letter of credit obligations supporting Indebtedness otherwise included in the determination of such particular amount shall not be included so long as they were Incurred by a Person that could have Incurred such Indebtedness pursuant to this clause Section 4.03.
(J)f) For all purposes under this Indenture, does (1) unsecured Indebtedness shall not exceed $55,000,000. With be treated as subordinated or junior to Secured Indebtedness merely because it is unsecured and (2) senior Indebtedness shall not be treated as subordinated or junior to any other senior Indebtedness merely because it has a junior priority with respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtednessthe same collateral or is secured by different collateral or because it is guaranteed by different obligors.
Appears in 1 contract
Sources: Indenture (BOISE CASCADE Co)
Limitation on Indebtedness. (1a) The Company shall not, and shall not permit any Restricted Subsidiary to, incurIncur, directly or indirectly, any Indebtedness; provided, however, that the Company and the Restricted Subsidiaries shall be entitled to Incur Indebtedness unless(including Additional Notes issued after the Issue Date) if, on the date of such incurrenceIncurrence and after giving effect thereto on a pro forma basis, no Default has occurred and is continuing and the Consolidated Coverage Ratio exceeds 2.0 2 to 1.
(2b) Notwithstanding the foregoing paragraph (1a), the Company and its the Restricted Subsidiaries may incur shall be entitled to Incur any or all of the following Indebtedness (“Permitted Indebtedness:”):
(a1) Indebtedness incurred Incurred by the Company and the Restricted Subsidiaries pursuant to the Credit Facility or any other revolving credit arrangementFacilities; provided, however, that, immediately after giving effect to any such incurrenceIncurrence, the aggregate principal amount of such all Indebtedness Incurred under this clause (1) and then outstanding does not exceed the greater of (A) $175,000,000 (250.0 million less the then outstanding sum of all mandatory principal amount payments with respect to such Indebtedness pursuant to Section 4.07(a)(3)(A) (which principal payments in the case of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause revolving loans are accompanied by a corresponding permanent commitment reduction) and (B) below) and the sum of (ix) 5065% of the book value of the inventory of the Company and its the Restricted Subsidiaries and (iiy) 85% of the book value of the accounts receivable of the Company and its the Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary), in each case determined in accordance with GAAPSubsidiaries;
(b2) Indebtedness of the Company owed to and held by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted Subsidiary; provided, however, that (A) any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted SubsidiarySubsidiary or to the holder of a Lien permitted under this Indenture) shall be deemed, in each case, to constitute the incurrence Incurrence of such Indebtedness by the issuer thereofobligor thereon and (B) if the Company is the obligor on such Indebtedness and the holders of Credit Facility Obligations do not have a security interest therein or the obligee is a Restricted Subsidiary that is not a Guarantor, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes;
(c3) the SecuritiesNotes, the Exchange Notes and the Subsidiary Guarantees (other than any Additional Notes and any related Guarantees);
(d4) Indebtedness outstanding as of on the date of this Note Issue Date (other than Indebtedness described in clause (A), (B1) or (C3) of this Section 3(d)(24.03(b));
(e) Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 3(d)(1) or pursuant to clause (C) or (D) of this Section 3(d)(2) or this clause (E);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an amount not exceeding 95% of the aggregate unpaid balance of the Receivables and Related Assets of such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
(h) Indebtedness of the Company and the Company's Restricted Subsidiaries to the extent the net proceeds thereof are concurrently deposited to defease all Securities pursuant to the terms of the Indenture or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company in an aggregate principal amount which, together with all other Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With respect to Indebtedness permitted under this Section 3(d)(2)(J) no more than $20,000,000 of Indebtedness may be incurred pursuant to such provision in respect of Purchase Money Indebtedness.
Appears in 1 contract
Limitation on Indebtedness. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness (other than the Notes, the Subsidiary Guarantees and Indebtedness existing on the Closing Date); provided that 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), and any Restricted Subsidiary that is not a Guarantor may Incur Acquired Indebtedness, if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio would be greater than 3.0:1.
(b) Notwithstanding the foregoing, the Company and any Restricted Subsidiary (except as specified below) may Incur each and all of the following: (i) Indebtedness outstanding at any time in an aggregate principal amount not to exceed an amount equal to the greater of (A) $500 million, less any amount of Indebtedness permanently repaid as provided under Section 4.10 and (B) the sum of (1) The Company shall not, and shall not permit any Restricted Subsidiary to, incur, directly or indirectly, any Indebtedness unless, on 90% of the date consolidated book value of such incurrence, the Consolidated Coverage Ratio exceeds 2.0 accounts receivable (other than accounts receivable subject to 1.
(2a Receivables Program) Notwithstanding the foregoing paragraph (1), of the Company and its Restricted Subsidiaries may incur any or all of the following Indebtedness:
plus (a2) Indebtedness incurred by the Company pursuant to the Credit Facility or any other revolving credit arrangement; provided, however, that, after giving effect to any such incurrence, the aggregate principal amount of such Indebtedness then outstanding does not exceed the greater of $175,000,000 (less the then outstanding principal amount of Indebtedness arising under any Receivables Program of the Company or any Restricted Subsidiary, other than Indebtedness described in clause (B) below) and the sum of (i) 5060% of the consolidated book value of the inventory of the Company and its Restricted Subsidiaries and (ii) 85% of the book value of the accounts receivable of the Company and its Restricted Subsidiaries (other than accounts receivable subject to any Receivables Program of the Company or any Restricted Subsidiary)Subsidiaries, in each case determined in accordance with GAAP;
; (bii) Indebtedness of (A) to the Company owed to and held evidenced by a promissory note or (B) to any of its Restricted Subsidiary and Indebtedness of a Restricted Subsidiary owed to and held by the Company or a Restricted SubsidiarySubsidiaries; provided, however, provided that any subsequent issuance or transfer of any Capital Stock event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or a another Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence an Incurrence of such Indebtedness not permitted by this clause (ii); (iii) Indebtedness issued in exchange for, or the net proceeds of which are used to refinance or refund, then outstanding Indebtedness, other than Indebtedness Incurred under clause (i), (ii), (iv), (vi) or (vii) of this paragraph (b), and any refinancings thereof in an amount not to exceed the amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses); provided (A) in case the Indebtedness to be refinanced is subordinated in right of payment to the Notes, such new Indebtedness, by its terms or by the issuer thereof;
terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes and (cB) the Securities;
(d) Indebtedness outstanding such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded; and provided further that in no event may Indebtedness of the Company be refinanced by means of any Indebtedness of any Restricted Subsidiary pursuant to this Note (other than Indebtedness described in clause (iii); (iv) Indebtedness (A)) in respect of performance, surety or appeal bonds provided in the ordinary course of business, (B) under Currency Agreements and Interest Rate Agreements; provided that such agreements (1) are designed solely to protect the Company and its Restricted Subsidiaries against fluctuations in foreign currency exchange rates or interest rates and (2) do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder; and (C) arising from agreements providing for indemnification, adjustment of this Section 3(d)(2));
purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company (e) Refinancing Indebtedness in respect other than Guarantees of Indebtedness incurred pursuant to Section 3(d)(1) Incurred by any Person acquiring all or pursuant to clause (C) any portion of such business, assets or (D) Restricted Subsidiary of this Section 3(d)(2) or this clause (Ethe Company for the purpose of financing such acquisition);
(f) Hedging Obligations consisting of Interest Rate or Currency Protection Agreements directly related to Indebtedness permitted to be incurred hereunder;
(g) Indebtedness incurred by a Receivables Subsidiary, other than Indebtedness described in clause (B) above, in an a principal amount not exceeding 95% of to exceed the aggregate unpaid balance of gross proceeds actually received by the Receivables and Related Assets of Company or any Restricted Subsidiary in connection with such Receivables Subsidiary at the time of such incurrence pursuant to a Receivables Program;
disposition; (hv) Indebtedness of the Company and the Company's Restricted Subsidiaries , to the extent the net proceeds thereof are concurrently deposited promptly used to defease all Securities pursuant to the terms of the Indenture purchase Notes or all New Notes pursuant to the terms herein;
(i) Indebtedness represented by guarantees by the Company or the Company's Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred under the Indenture;
(j) Indebtedness incurred by the Company Senior Subordinated Obligations tendered in an aggregate principal amount which, together with all other Offer to Purchase made as a result of a Change in Control; provided that any Indebtedness of the Company outstanding on the date of such incurrence which was incurred pursuant to this clause (J), does not exceed $55,000,000. With v) with respect to the payment of Senior Subordinated Obligations (A) shall be expressly made subordinate in right of payment to the Notes and (B) shall not mature prior to the Stated Maturity of the Senior Subordinated Obligations, and shall have an Average Life that is at least equal to the remaining Average Life of the Senior Subordinated Obligations; (vi) Indebtedness of the Company, to the extent the net proceeds thereof are promptly deposited to defease the Notes as set forth in Section 8.03; (vii) Guarantees of Indebtedness of the Company by any Restricted Subsidiary provided the Guarantee of such Indebtedness is permitted by and made in accordance with Section 4.07; and (viii) Indebtedness Incurred in connection with a Tax Abatement Transaction.
(c) Notwithstanding any other provision of this Section 4.03, the maximum amount of Indebtedness that the Company or a Restricted Subsidiary may Incur pursuant to this Section 4.03 shall not be deemed to be exceeded, with respect to any outstanding Indebtedness, due solely to the result of fluctuations in the exchange rates of currencies.
(d) For purposes of determining any particular amount of Indebtedness under this Section 3(d)(2)(J4.03, (i) no Indebtedness Incurred under the Bank Credit Agreement on or prior to the Closing Date shall be treated as Incurred pursuant to clause (i) of Section 4.03(b), (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 and (iii) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.09 shall not be treated as Indebtedness. For purposes of determining compliance with this Section 4.03, in the event that an item of Indebtedness meets the criteria of more than $20,000,000 one of the types of Indebtedness may described in the above clauses (other than Indebtedness referred to in clause (i) of this paragraph (d)), the Company, in its sole discretion, shall classify such item of Indebtedness and only be incurred pursuant required to include the amount and type of such provision Indebtedness in respect one of Purchase Money Indebtednesssuch clauses.
Appears in 1 contract
Sources: Indenture (Agco Corp /De)