Covenant Suspension. (a) If on any date following the date hereof (i) the Notes are rated Baa3 or better by Xxxxx’x and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) and (ii) no Default or Event of Default shall have occurred and be continuing, then, beginning on that day and subject to the provisions of subsection (c) below, and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder will be suspended: (i) Section 3.06; (ii) Section 3.07; (iii) Section 3.08; (iv) Section 3.09; (v) Section 3.10; and (vi) Section 9.01(c). (b) During any period that the foregoing covenants have been suspended, the Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted Subsidiary.” (c) Notwithstanding the foregoing, if the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants will be reinstituted as of and from the date of such rating decline. Calculations under the reinstated Section 3.07 will be made as if Section 3.07 had been in effect since the date of the Indenture, except that no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. Also, any encumbrance or restriction of the type referred to in Section 3.08 incurred during the suspension period shall not result in a Default when such covenant is re-instituted.”
Appears in 2 contracts
Samples: Second Supplemental Indenture (Alliant Techsystems Inc), Supplemental Indenture (Alliant Techsystems Inc)
Covenant Suspension. (a) If on at any date following the date hereof time (i1) the Notes are rated at least Baa3 or better by Xxxxx’x Mxxxx’x and at least BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, at least the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) ); and (ii2) at such time no Default or Event of Default shall have has occurred and be is continuing, then, beginning on that day and subject to the provisions of subsection on each day thereafter until a Reversion Date, if any (c) below, and notwithstanding anything as described in this Article 3 to the contrarySection 4.19(c)), the following covenants hereunder (the “Suspended Covenants”) will be suspendedsuspended and the Company and the Restricted Subsidiaries shall not be subject to (and shall not be required to comply with) the Suspended Covenants:
(i) Section 3.064.11;
(ii) Section 3.074.08;
(iii) Section 3.084.07;
(iv) Section 3.094.13;
(v) clauses (1) and (3) of Section 3.104.14;
(vi) clause (4) of Section 5.01(a);
(vii) Section 4.09;
(viii) Section 4.15; and
(viix) Section 9.01(c)4.12.
(b) During any period that the foregoing covenants have been suspendedsuspended (each such period, a “Suspension Period”), the Company’s Board of Directors may not designate any of its Restricted Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted SubsidiarySection 4.15.”
(c) Notwithstanding the foregoingSections 4.19(a) and (b), if the rating assigned by either such rating agency Mxxxx’x or S&P should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants Suspended Covenants will be reinstituted as of and from the date of such rating decline. Calculations decline (such date, a “Reversion Date”) and on the Reversion Date and on each date thereafter (subject to the provisions of Section 4.19(a)) the Company and the Restricted Subsidiaries shall be subject to (and shall be required to comply with) the Suspended Covenants.
(d) For purposes of calculating the amount available to be made as Restricted Payments under the reinstated Section 3.07 4.08(a)(3), calculations under that clause will be made as if Section 3.07 had been in effect since with reference to the date of the IndentureRestricted Payment, except as set forth in that no clause. Accordingly (x) Restricted Payments made during the Suspension Period that would not otherwise be permitted pursuant to any of clauses (b)(1) through (b)(14) of Section 4.08 will reduce the amount available to be made as Restricted Payments under Section 4.08(a)(3); provided, however, that the amount available to be made as a Restricted Payment shall not be reduced to below zero solely as a result of such Restricted Payments but may be reduced to below zero as a result of negative cumulative Consolidated Net Income during the Suspension Period for purposes of Section 4.08(a)(3)(A) and (y) the items specified in clauses (a)(3)(A) through (F) of Section 4.08 that occur during the Suspension Period will increase the amount available to be made as Restricted Payments under clause (a)(3) of Section 4.08. For purposes of Section 4.11, on each Reversion Date, the unutilized Excess Proceeds will be reset to zero. No Default or Event of Default will be deemed to have occurred or exist on a Reversion Date (or thereafter) under any Suspended Covenant, solely by reason as a result of, or as a result of the continued existence on or after a Restricted Payment made while that covenant was suspended. AlsoReversion Date of facts and circumstances arising from, any encumbrance actions taken by the Company or restriction any Restricted Subsidiaries thereof, or events occurring, or performance on or after a Reversion Date of any obligations arising from transactions which occurred, during a Suspension Period.
(e) The Trustee shall not have any obligation to monitor the ratings of the type referred to in Section 3.08 incurred during the suspension period shall not result in a Default when such covenant is re-institutedNotes.”
Appears in 2 contracts
Samples: Fourth Supplemental Indenture (Laredo Petroleum, Inc.), Third Supplemental Indenture (Laredo Petroleum, Inc.)
Covenant Suspension. (a) If on any date following the date hereof of this Indenture (i) the Notes are rated Baa3 or better by Xxxxx’x and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(FSection 3(a)(62) under of the Securities Exchange Act selected by the Company as a replacement agency) ); and (ii) no Default or Event of Default shall have occurred and be continuing, then, beginning on that day upon the Company’s delivery of notice of such events to the Trustee, Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.18 and subject 5.01(a)(4) of this Indenture will be suspended and no Default or Event of Default shall result from any failure to comply with any of the provisions of subsection (c) below, and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder will be suspended:
(i) Section 3.06;
(ii) Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c)such Sections.
(b) During any period that the foregoing covenants Sections listed in Section 4.19(a)(ii) have been suspended, the Company’s Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted SubsidiarySection 4.18 hereof.”
(c) Notwithstanding the foregoing, if the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants will be reinstituted as of and from the date of such rating decline. Calculations under the reinstated Section 3.07 4.07 hereof will be made as if Section 3.07 4.07 had been in effect since the date of the Indenture, this Indenture except that no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. Also, any encumbrance .
(d) The Trustee will have no obligation to (i) independently determine or restriction verify if the conditions for the suspension or reinstitution of the type referred covenants pursuant to in this Section 3.08 incurred during 4.19 have occurred or (ii) notify the Holders of Notes of the occurrence of such suspension period shall not result in a Default when such covenant is re-institutedor reinstitution.”
Appears in 2 contracts
Samples: Indenture (Diamondback Energy, Inc.), Indenture (Diamondback Energy, Inc.)
Covenant Suspension. (a) If Beginning on any date following the date hereof (the “Suspension Date”) that (i) the Notes are rated Baa3 or better by Xxxxx’x and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating Securities have Investment Grade Ratings from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) both Rating Agencies and (ii) no Default or Event of Default shall have has occurred and is continuing under this Indenture, and ending on the date (the “Reversion Date”) that either Rating Agency (or both Rating Agencies) withdraws its Investment Grade Rating on the Securities or downgrades the rating assigned by it to the Securities below an Investment Grade Rating or a Default or Event of Default has occurred and is continuing (such period of time from and including the Suspension Date to but excluding the Reversion Date, the “Suspension Period”), the Company and its Restricted Subsidiaries will not be continuing, then, beginning on that day and subject to the following provisions of subsection (c) below, and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder will be suspendedIndenture:
(i1) Section 3.064.03;
(ii2) Section 3.074.04;
(iii3) Section 3.084.12;
(iv4) Section 3.094.13;
(v5) Section 3.104.17; and
(vi6) Sections 5.01(a)(2) and (c)(4); (collectively, the “Suspended Covenants”); provided, however, that the Company and its Restricted Subsidiaries will remain subject to the following provisions of this Indenture:
(1) Section 9.01(c).4.10;
(b2) Section 4.14;
(3) Section 4.15;
(4) Section 4.18;
(5) Section 4.19;
(6) Section 4.20;
(7) Section 4.21; and
(8) Section 5.01 (except to the extent set forth in this paragraph). During any period that the foregoing covenants have been suspendedSuspension Period, the Company’s Board of Directors may not designate any of its the Company’s Subsidiaries as Unrestricted Subsidiaries Subsidiaries. On the Reversion Date, all Indebtedness incurred and Disqualified Capital Stock and Preferred Stock issued during the Suspension Period will be classified as having been incurred or issued pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth in Section 4.03(a) or one of the clauses set forth in the definition of “Unrestricted Subsidiary.”
Permitted Indebtedness (c) Notwithstanding to the foregoingextent such Indebtedness would be permitted to be incurred or issued thereunder as of the Reversion Date and after giving effect to Indebtedness incurred issued prior to the Suspension Period and outstanding on the Reversion Date). To the extent any such Indebtedness would not be so permitted to be incurred or issued pursuant to the Consolidated Fixed Charge Coverage Ratio or the definition of Permitted Indebtedness, if the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants Indebtedness will be reinstituted deemed to have been outstanding on the Issue Date, so that it is classified as permitted under clause (3) of and from the date definition of such rating declinePermitted Indebtedness. Calculations made after the Reversion Date of the amount available to be made as Restricted Payments under the reinstated Section 3.07 4.04 will be made as if though Section 3.07 4.04 had been in effect since the date Issue Date and throughout the Suspension Period. Accordingly, Restricted Payments made during the Suspension Period will reduce the amount available to be made as Restricted Payments under Section 4.04(a). For purposes of Section 4.12, on the Suspension Date, the Net Cash Proceeds amount will be reset to zero. Notwithstanding the reinstatement of the IndentureSuspended Covenants on the Reversion Date, except neither (a) the continued existence, on and after the Reversion Date, of facts and circumstances or obligations that no occurred, were incurred or otherwise came into existence during a Suspension Period nor (b) the performance thereof, shall constitute a breach of any Suspended Covenant set forth in this Indenture or cause a Default will be deemed or Event of Default thereunder; provided, however, that (i) the Company and the Restricted Subsidiaries did not incur or otherwise cause such facts and circumstances or obligations to have occurred solely by reason exist in anticipation of a Restricted Payment made while withdrawal or downgrade by either Rating Agency (or both Rating Agencies) of its Investment Grade Rating on the Securities and (ii) the Company reasonably believed that covenant was suspended. Also, any encumbrance such incurrence or restriction of the type referred to in Section 3.08 incurred during the suspension period shall actions would not result in a Default when such covenant is re-institutedwithdrawal or downgrade.”
Appears in 2 contracts
Covenant Suspension. (a) If on at any date following the date hereof time (i) the rating assigned to the Notes are rated Baa3 or better by Xxxxx’x and BBB- or better by S&P and Xxxxx’x (or, if either of such entity (but not both) ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating from ratings assigned to the Notes by any two of S&P, Xxxxx’x and any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(FSection 3(a)(62) under of the Securities Exchange Act selected by the Company as a replacement agency) and is an Investment Grade Rating, (ii) no Default or Event of Default shall have has occurred and be continuing, then, beginning on that day is continuing under this Indenture and subject (iii) the Issuers have delivered to the provisions of subsection (c) below, and notwithstanding anything in this Article 3 Trustee an Officers’ Certificate certifying to the contrarymatters specified in clauses (i) and (ii) of this Section 4.19(a) as of the date of such certificate, the following covenants hereunder provisions will be suspended:
suspended (icollectively, the “Suspended Covenants”) Section 3.06;
beginning on such date (iithe “Suspension Date”) Section 3.07;
and continuing until the Reinstatement Date (iii) such period, the “Suspension Period”): Section 3.08;
, Section 4.07, Section 4.08, Section 4.09, Section 4.10, Section 4.11, Section 4.17, Section 4.20, and Section 5.01(a)(iv). However, the Company and its Restricted Subsidiaries will remain subject to all of the other provisions of this Indenture, including, without limitation, Section 4.03, Section 4.12, Section 4.13 and Section 5.01 (iv) excluding Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c5.01(a)(iv)). No Subsidiaries shall be designated as Unrestricted Subsidiaries during any Suspension Period.
(b) During Thereafter, if either S&P or Xxxxx’x (or any period rating agency substituted therefor as described in Section 4.19(a)) withdraws its ratings or downgrades the ratings assigned to the Notes below the Investment Grade Rating so that the foregoing covenants Notes do not have been suspendedan Investment Grade Rating from both S&P and Xxxxx’x (or two of S&P, Xxxxx’x and any rating agency substituted therefor as described above), the Board Company and its Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants, subject to the terms, conditions and obligations set forth in this Indenture (each such date of Directors may not designate reinstatement being the “Reinstatement Date”). The Issuers shall give prompt notice to the Trustee of any of its Subsidiaries as Unrestricted Subsidiaries Reinstatement Date pursuant to an Officers’ Certificate. Compliance with the definition of “Unrestricted Subsidiary.”
(c) Notwithstanding Suspended Covenants with respect to Restricted Payments made after the foregoing, if the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants Reinstatement Date will be reinstituted calculated in accordance with Section 4.07 as of and from the date of such rating decline. Calculations under the reinstated though Section 3.07 will be made as if Section 3.07 4.07 had been in effect since during the date entire period of time from which the Indenture, except Notes are issued; provided that no Default will or Event of Default shall be deemed to have occurred solely by reason as a result of a Restricted Payment made while any failure to comply with any Suspended Covenant that covenant was suspended. Also, occurs during any encumbrance or restriction period during which such Suspended Covenants are not in effect.
(c) The Trustee will not have any obligation to monitor the ratings of the type Notes, the occurrence or dates of any Suspension Date, Suspension Period or Reinstatement Date and may rely conclusively on the Officers’ Certificates referred to in Section 3.08 incurred during above. The Trustee will not have any obligation to notify the suspension period shall not result in Holders of the occurrence or dates of any Suspension Date, Suspension Period or Reinstatement Date or of the Suspended Covenants, but may provide a Default when copy of such covenant is re-institutedOfficers’ Certificates to any Holder upon request.”
Appears in 2 contracts
Samples: Indenture (USA Compression Partners, LP), Indenture (USA Compression Partners, LP)
Covenant Suspension. If at any time (a) If on any date following the date hereof (i) rating assigned to the Notes are rated Baa3 by either S&P or better by Xxxxx’x and BBB- or better by S&P is an Investment Grade Rating, (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) and (iib) no Default or Event of Default shall have has occurred and is continuing under this Indenture and (c) the Issuers have delivered to the Trustee an Officers’ Certificate specifying its election to suspend covenants in accordance with this Section 4.18 and certifying to the foregoing provisions of this sentence, the Company and its Restricted Subsidiaries will no longer be continuing, then, beginning on that day and subject to the provisions of subsection Sections 3.09, 4.07, 4.08, 4.09, 4.10, 4.11, 4.16, clauses (c1)(a) belowand (3) of Section 4.17, and notwithstanding anything in clause (d) of Section 5.01 of this Article 3 to the contraryIndenture (collectively, the following covenants hereunder “Suspended Covenants”); provided, however, the Company and its Restricted Subsidiaries will be suspended:
(i) Section 3.06;
(ii) Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c).
(b) During any period that remain subject to all of the other provisions of this Indenture. After the foregoing covenants have been suspended, the Board of Directors Company may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant Subsidiaries. Thereafter, if either S&P or Moody’s withdraws its ratings or downgrades the ratings assigned to the definition of “Unrestricted Subsidiary.”
(c) Notwithstanding Notes below the foregoing, if Investment Grade Rating so that the rating assigned by Notes do not have an Investment Grade Rating from either such rating agency should subsequently decline to below Baa3 S&P or BBB-, respectivelyMoody’s, the foregoing covenants Company and its Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants, subject to the terms, conditions and obligations set forth herein (each such date of reinstatement being the “Reinstatement Date”). Compliance with the Suspended Covenants with respect to Restricted Payments made after the Reinstatement Date will be reinstituted calculated in accordance with the terms of Section 4.07 of this Indenture as of and from the date of though such rating decline. Calculations under the reinstated Section 3.07 will be made as if Section 3.07 covenants had been in effect during the period since the date of the Indenture, except that no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. Also, any encumbrance or restriction of the type referred to in Section 3.08 incurred during the suspension period shall not result in a Default when such covenant is re-institutedInitial Issuance Date.”
Appears in 2 contracts
Samples: Indenture (Calumet Specialty Products Partners, L.P.), Indenture (Calumet Specialty Products Partners, L.P.)
Covenant Suspension. If at any time (a) If on any date following the date hereof (i) rating assigned to the Notes are rated Baa3 or better by both S&P and Xxxxx’x and BBB- or better by S&P is an Investment Grade Rating, (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) and (iib) no Default or Event of Default shall have has occurred and is continuing under this Indenture and (c) the Issuers have delivered to the Trustee an Officers’ Certificate specifying its election to suspend covenants in accordance with this Section 4.19 and certifying to the foregoing provisions of this sentence, the Company and its Restricted Subsidiaries will no longer be continuing, then, beginning on that day and subject to the provisions of subsection Sections 3.09, 4.07, 4.08, 4.09, 4.10, 4.11, 4.17, clauses (c1)(a) belowand (3) of Section 4.18, and notwithstanding anything in clause (d) of Section 5.01 of this Article 3 to the contraryIndenture (collectively, the following covenants hereunder “Suspended Covenants”); provided, however, the Company and its Restricted Subsidiaries will be suspended:
(i) Section 3.06;
(ii) Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c).
(b) During any period that remain subject to all of the other provisions of this Indenture. After the foregoing covenants have been suspended, the Board of Directors Company may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant Subsidiaries. Thereafter, if either S&P or Moody’s withdraws its ratings or downgrades the ratings assigned to the definition of “Unrestricted Subsidiary.”
(c) Notwithstanding Notes below the foregoing, if Investment Grade Rating so that the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectivelyNotes do not have an Investment Grade Rating from both S&P and Xxxxx’x, the foregoing covenants Company and its Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants, subject to the terms, conditions and obligations set forth herein (each such date of reinstatement being the “Reinstatement Date”). Compliance with the Suspended Covenants with respect to Restricted Payments made after the Reinstatement Date will be reinstituted calculated in accordance with the terms of Section 4.07 of this Indenture as of and from the date of though such rating decline. Calculations under the reinstated Section 3.07 will be made as if Section 3.07 covenants had been in effect during the period since the date of the Indenture, except that no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. Also, any encumbrance or restriction of the type referred to in Section 3.08 incurred during the suspension period shall not result in a Default when such covenant is re-institutedInitial Issuance Date.”
Appears in 2 contracts
Samples: Indenture (Calumet Specialty Products Partners, L.P.), Indenture (Calumet Specialty Products Partners, L.P.)
Covenant Suspension. If at any time (a) If on any date following the date hereof (i) rating assigned to the Notes are rated Baa3 or better by both S&P and Xxxxx’x and BBB- or better by S&P is an Investment Grade Rating, (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) and (iib) no Default or Event of Default shall have has occurred and is continuing under this Indenture and (c) the Issuers have delivered to the Holders an Officers’ Certificate certifying to the foregoing provisions of this sentence, the Company and its Restricted Subsidiaries will no longer be continuing, then, beginning on that day and subject to the provisions of subsection Sections 3.09, 4.07, 4.08, 4.09, 4.10, 4.11 and 4.17, clauses (c1)(a) belowand (3) of Section 4.18, and notwithstanding anything in this Article 3 to the contraryclause (d) of Section 5.01 (collectively, the following covenants hereunder “Suspended Covenants”); provided, however, that the Company and its Restricted Subsidiaries will be suspended:
(i) Section 3.06;
(ii) Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c).
(b) During any period that remain subject to all of the other provisions of this Indenture. After the foregoing covenants have been suspended, the Board of Directors Company may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant Subsidiaries. Thereafter, if either S&P or Moody’s withdraws its ratings or downgrades the ratings assigned to the definition of “Unrestricted Subsidiary.”
(c) Notwithstanding Notes below the foregoing, if Investment Grade Rating so that the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectivelyNotes do not have an Investment Grade Rating from both S&P and Xxxxx’x, the foregoing covenants Company and its Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants, subject to the terms, conditions and obligations set forth herein (each such date of reinstatement being the “Reinstatement Date”), and the Issuers shall give written notice to the Holders of any such withdrawal or downgrade. Compliance with the Suspended Covenants with respect to Restricted Payments made after the Reinstatement Date will be reinstituted calculated in accordance with the terms of Section 4.07 as of and from the date of though such rating decline. Calculations under the reinstated Section 3.07 will be made as if Section 3.07 covenants had been in effect during the period since the date of the Indenture, except that no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. Also, any encumbrance or restriction of the type referred to in Section 3.08 incurred during the suspension period shall not result in a Default when such covenant is re-institutedClosing Date.”
Appears in 2 contracts
Samples: Indenture (Global Partners Lp), Indenture (Global Partners Lp)
Covenant Suspension. (a) If on at any date following the date hereof time (i1) the Notes are rated at least Baa3 or better by Xxxxx’x and at least BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the CompanyParent Guarantor, at least the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F15c3- l(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company Parent Guarantor as a replacement agency) ); and (ii2) at such time no Default or Event of Default shall have occurred and be continuing, is continuing then, beginning on that day and on each day thereafter (subject to the provisions of subsection (c) below, and notwithstanding anything in this Article 3 to the contrarySection 4.19(c)), the following covenants hereunder (the “Suspended Covenants”) will be suspendedsuspended and the Parent Guarantor, the Company and the Restricted Subsidiaries shall not be subject to (and shall not be required to comply with) the Suspended Covenants:
(i) Section 3.064.11;
(ii) Section 3.074.08;
(iii) Section 3.084.07;
(iv) Section 3.094.13;
(v) clauses (1) and (3) of Section 3.104.14;
(vi) clause (5) of Section 5.01(a);
(vii) Section 4.09;
(viii) Section 4.15; and
(viix) Section 9.01(c)4.12.
(b) During any period that the foregoing covenants have been suspendedsuspended (each such period, a “Suspension Period”), the Parent Guarantor’s Board of Directors may not designate any of its Restricted Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted SubsidiarySection 4.15.”
(c) Notwithstanding the foregoingSections 4.19(a) and (b), if the rating assigned by either such rating agency Rating Agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants Suspended Covenants will be reinstituted on and as of and from the date of such rating decline. Calculations decline (such date, a “Reversion Date”) and on the Reversion Date and each date thereafter (subject to the provisions of Section 4.19(a)) the Parent Guarantor, the Company and the Restricted Subsidiaries shall be subject to (and shall be required to comply with) the Suspended Covenants.
(d) For purposes of calculating the amount available to be made as Restricted Payments under the reinstated Section 3.07 4.08(a)(3), calculations under that clause will be made as if Section 3.07 had been in effect since with reference to the date of the IndentureRestricted Payment, except as set forth in that no clause. Accordingly (x) Restricted Payments made during the Suspension Period that would not otherwise be permitted pursuant to any of clauses (b)(1) through (b)(14) of Section 4.08 will reduce the amount available to be made as Restricted Payments under Section 4.08(a)(3); provided, however, that the amount available to be made as a Restricted Payment shall not be reduced to below zero solely as a result of such Restricted Payments but may be reduced to below zero as a result of negative cumulative Consolidated Net Income during the Suspension Period for purposes of Section 4.08(a)(3)(A) and (y) the items specified in clauses (a)(3)(A) through (F) of Section 4.08 that occur during the Suspension Period will increase the amount available to be made as Restricted Payments under clause (a)(3) of Section 4.08. For purposes of Section 4.11, on each Reversion Date, the unutilized Excess Proceeds will be reset to zero. No Default or Event of Default will be deemed to have occurred or exist on the Reversion Date (or thereafter) under any Suspended Covenant, solely by reason as a result of, or as a result of a Restricted Payment made while that covenant was suspended. Alsothe continued existence on or after the Reversion Date of facts and circumstances arising from, any encumbrance actions taken by the Parent Guarantor, the Company or restriction any Restricted Subsidiaries thereof, or events occurring, or performance on or after the Reversion Date of the type referred to in Section 3.08 incurred any obligations arising from transactions which occurred, during the suspension period shall not result in a Default when such covenant is re-institutedSuspension Period.”
Appears in 2 contracts
Samples: Indenture (Laredo Petroleum Holdings, Inc.), Indenture (Laredo Petroleum, Inc.)
Covenant Suspension. (a) If on at any date following the date hereof time (ia) the rating assigned to the Notes are rated Baa3 or better by both S&P and Xxxxx’x and BBB- or better by S&P is an Investment Grade Rating (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the Notes also receive the equivalent investment grade credit rating from any other another “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act and the rules and regulations thereunder selected by the Company as a replacement agency) and (iib) no Default or Event of Default shall have has occurred and is continuing hereunder, the Company and its Restricted Subsidiaries will no longer be continuing, then, beginning on that day and subject to the following provisions of subsection this Indenture (c) below, and notwithstanding anything in this Article 3 to the contrarycollectively, the following covenants hereunder will be suspended:“Suspended Covenants”):
(i1) Section 3.064.07 (“Restricted Payments”);
(ii2) Section 3.074.08 (“Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries”);
(iii3) Section 3.084.09 (“Incurrence of Indebtedness and Issuance of Preferred Stock”);
(iv4) Section 3.094.10 (“Asset Sales”);
(v5) Section 3.104.11 (“Transactions with Affiliates”);
(6) Section 4.17 (“Designation of Restricted and Unrestricted Subsidiaries”); and
(vi7) Section 9.01(c5.01(a)(4) (Clause (4) of paragraph (a) of “Merger, Consolidation or Sale of Assets”).
(b) During any period that After the foregoing covenants have been suspended, the Board of Directors Company may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted Subsidiary.”
(c) Notwithstanding the foregoingThereafter, if either S&P or Moody’s (or such other replacement agency) downgrades the rating ratings assigned by either to the Notes below the Investment Grade Rating, the Company and its Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants, subject to the terms, conditions and obligations set forth in this Indenture (each such rating agency should subsequently decline date of reinstatement being the “Reinstatement Date”); provided, however, that no Default, Event of Default or breach of any kind shall be deemed to below Baa3 exist or BBB-have occurred hereunder, respectivelythe Notes or the Subsidiary Guarantees with respect to the foregoing suspended covenants based on, and neither Issuer or any Restricted Subsidiary or Guarantor shall bear any liability for, any actions taken or events occurring during the period the foregoing covenants were suspended, or any actions taken at any time pursuant to any contractual obligation arising prior to the date the foregoing covenants were reinstated, regardless of whether such actions or events would have been permitted if the applicable Suspended Covenants remained in effect during such period.
(d) On the date the foregoing covenants are reinstated, all Indebtedness incurred during the suspension period will be reinstituted as of and from deemed to have been outstanding on the date of hereof, so that it is classified as permitted under Section 4.09(b)(2) hereof, and all Liens, Investments and affiliate transactions in existence at such rating decline. Calculations under the reinstated Section 3.07 time will be deemed to have been outstanding on the date hereof. Compliance with the Suspended Covenants with respect to Restricted Payments made after the Reinstatement Date will be calculated in accordance with the terms of Section 4.07 hereof as if Section 3.07 though such covenant had not been in effect since during the date entire period of time that the Indenture, except that covenants were suspended and no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. Also.
(e) For purposes of Section 4.11 hereof, all agreements and arrangements entered into by the Company or any encumbrance or restriction Restricted Subsidiary with an Affiliate of the type referred Company after the covenants have been suspended but prior to in the Reinstatement Date will be deemed to have been entered into prior to the date hereof and permitted by Section 3.08 incurred during 4.11(b)(4) hereof, and for purposes of Section 4.08 hereof, all contracts entered into after the suspension period shall not result in a Default when covenants have been suspended but prior to the Reinstatement Date that contain any of the restrictions contemplated by such covenant is re-institutedwill be deemed to have been existing on the date hereof. As a result, during any period in which the Company and its Restricted Subsidiaries are not subject to the Suspended Covenants, the Holders will be entitled to substantially reduced covenant protection. The Company will provide the Trustee with an Officer’s Certificate stating that covenants have been suspended or reinstated.”
Appears in 2 contracts
Samples: Indenture (Par Pacific Holdings, Inc.), Indenture (Par Pacific Holdings, Inc.)
Covenant Suspension. During any period of time (aa “Suspension Period”) If on any date following the date hereof that (i) the Notes are rated Baa3 or better ratings assigned to all Tranche A Term Loans, Tranche B Term Loans, Tranche B II Term Loans, Tranche B III Term Loans, Tranche B 2019 Term Loans and Tranche B 2016 Term Loans by Xxxxx’x and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside both of the control of the Company, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) Rating Agencies are Investment Grade Ratings and (ii) no Default or Event of Default shall have has occurred and be is continuing, then, beginning on that day Level 3 and the Restricted Subsidiaries will not be subject to the provisions of subsection covenants set forth in Sections 6.01, 6.02, 6.03, 6.04, 6.06(i)(a), 6.07, 6.08 (cother than the first two sentences thereof), 6.09, 6.13(a)(3) belowand (4), 6.13(c)(3) and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder will be suspended:
(i4) Section 3.06;
(ii) Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c).
and clause (b) During of the first sentence of Section 6.10 (collectively, the “Suspended Covenants”). In the event that Level 3 and the Restricted Subsidiaries are not subject to the Suspended Covenants for any period that of time as a result of the foregoing covenants preceding sentence and, on any subsequent date (the “Reversion Date”), one or both of the Rating Agencies withdraws its ratings or downgrades the ratings assigned to the Loan below the required Investment Grade Ratings or a Default or Event of Default occurs and is continuing, then Level 3 and the Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants and calculations of the amount available to be made as Restricted Payments under Section 6.03 will be made as though Section 6.03 had been in effect during the entire period of time from the Measurement Date. On the Reversion Date, all Indebtedness Incurred during the Suspension Period will be classified to have been suspendedIncurred pursuant to paragraph (a) of Section 6.01 or one of the clauses set forth in paragraph (b) of Section 6.01 or paragraph (a) of Section 6.02 or one of the clauses set forth in paragraph (b) of Section 6.02 (in each case to the extent such Indebtedness would be permitted to be Incurred thereunder as of the Reversion Date and after giving effect to Indebtedness Incurred prior to the Suspension Period and outstanding on the Reversion Date). To the extent such Indebtedness would not be permitted to be Incurred pursuant to paragraph (a) of Section 6.01 or one of the clauses set forth in paragraph (b) of Section 6.01 or paragraph (a) of Section 6.02 or one of the clauses set forth in paragraph (b) of Section 6.02, such Indebtedness will be deemed to have been outstanding on the Measurement Date, so that it is classified as permitted under Section 6.01(b)(v) or Section 6.02(b)(iii). If the Incurrence of any Indebtedness by a Restricted Subsidiary during the Suspension Period would have been prohibited or conditioned upon such Restricted Subsidiary entering into a Guarantee of the Obligations and a Loan Proceeds Note Guarantee had Section 6.01 and Section 6.02 been in effect at the time of such Incurrence, such Restricted Subsidiary shall enter into a Guarantee of the Obligations and a Loan Proceeds Note Guarantee that are senior to or pari passu with such Indebtedness within ten days after the Reversion Date. For purposes of determining compliance with Section 6.07 on the Reversion Date, the Net Available Proceeds from all Asset Dispositions not applied in accordance with the covenant will be deemed to be reset to zero. Notwithstanding the foregoing, neither (a) the continued existence, after the date of such withdrawal or downgrade, of facts and circumstances or obligations that were Incurred or otherwise came into existence during a Suspension Period nor (b) the performance of any such obligations, shall constitute a breach of any covenant set forth in the Agreement or cause a Default or Event of Default thereunder; provided, however, that (1) Level 3 and its Restricted Subsidiaries did not Incur or otherwise cause such facts and circumstances or obligations to exist in anticipation of a withdrawal or downgrade below investment grade, (2) Level 3 reasonably believed that such Incurrence or actions would not result in such a withdrawal or downgrade and (3) if so required each Restricted Subsidiary shall have entered into a Guarantee of the Obligations and a Loan Proceeds Note Guarantee within the specified time period. For purposes of clauses (1) and (2) in the preceding sentence, anticipation and reasonable belief may be determined by Level 3 and shall be conclusively evidenced by a board resolution to such effect adopted in good faith by the Board of Directors of Level 3. In reaching their determination, the Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to Level 3 may, but need not, consult with the definition of “Unrestricted SubsidiaryRating Agencies.”
(c) Notwithstanding the foregoing, if the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants will be reinstituted as of and from the date of such rating decline. Calculations under the reinstated Section 3.07 will be made as if Section 3.07 had been in effect since the date of the Indenture, except that no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. Also, any encumbrance or restriction of the type referred to in Section 3.08 incurred during the suspension period shall not result in a Default when such covenant is re-instituted.”
Appears in 1 contract
Covenant Suspension. (a) If on Notwithstanding any date provision of this Indenture or of the Notes to the contrary, if at any time following the date hereof of this Indenture (ia) the Notes are rated Baa3 or better by Xxxxx’x and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(FSection 3(a)(62) under of the Securities Exchange Act selected by the Company as a replacement agency) and ), (iib) no Default or Event of Default shall have occurred and is continuing under this Indenture and (c) the Company has delivered to the Trustee notice of such events, Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.18 and 5.01(a)(4) of this Indenture will be continuing, then, beginning on that day suspended and subject no Default or Event of Default shall result from any failure to comply with any of the provisions of subsection (c) below, and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder will be suspended:
(i) Section 3.06;
(ii) Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c)such Sections.
(b) During any period that the foregoing covenants Sections have been suspended, the Company’s Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted SubsidiarySection 4.18 hereof.”
(c) Notwithstanding the foregoing, if the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants will be reinstituted as of and from the date of such rating decline. Calculations under the reinstated Section 3.07 4.07 hereof will be made as if Section 3.07 4.07 had been in effect since the date of the Indenture, this Indenture except that no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. Also, any encumbrance or restriction of the type referred to in Section 3.08 incurred during the suspension period shall not result in a Default when such covenant is re-instituted.”
Appears in 1 contract
Covenant Suspension. During any period of time (aa “Suspension Period”) If on any date following the date hereof that: (i) the Notes are rated Baa3 have Investment Grade ratings from both Rating Agencies and (ii) Royal Caribbean beneficially owns, directly or better by Xxxxx’x and BBB- or better by S&P indirectly, in excess of 50% (or, if either such entity ceases to rate the Notes for reasons outside “Ownership Threshold”) of the control outstanding shares of the Company, Parent Guarantor (the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within occurrence of the meaning of Rule 15c3-1(c)(2)(vi)(F) under events described in the Securities Exchange Act selected by the Company as a replacement agencyforegoing clauses (i) and (ii) no Default or Event of Default shall have occurred being collectively referred to as a “Covenant Suspension Event”), the Issuer and its Restricted Subsidiaries will not be continuing, then, beginning on that day and subject to the following provisions of subsection this Indenture (c) below, and notwithstanding anything in this Article 3 to the contrarycollectively, the following covenants hereunder will be suspended:
(i) Section 3.06;
(ii) Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c“Suspended Covenants”).
(b) During any period , provided that the foregoing covenants have been suspendedduring a Suspension Period, the Board of Directors Issuer may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to unless the definition Issuer could have designated such Subsidiaries as Unrestricted Subsidiaries in compliance with this Indenture assuming the covenants set forth below had not been suspended:
(a) Section 4.03 “Maintenance of Properties”
(b) Section 4.06 “Unrestricted Subsidiary.Incurrence of Indebtedness and Issuance of Preferred Stock”
(c) Notwithstanding Section 4.08 “Restricted Payments”
(d) Section 4.10 “Transactions with Affiliates”
(e) Section 4.15 “Limitation on Issuance of Guarantees of Indebtedness”
(f) Section 4.16 “Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries”
(g) Section 4.19 “Reports to Holders”
(h) Section 4.24 “Limitation on Sale and Leaseback Transactions”
(i) Section 5.01(a)(4) “Merger, Consolidation or Sale of Assets” In the foregoingevent that the Issuer and its Restricted Subsidiaries are not subject to the Suspended Covenants with respect to the Notes for any Suspension Period and, if subsequently, (x) either one or both Rating Agencies withdraws its rating or downgrades the rating assigned by either to the Notes below the required Investment Grade rating and/or (y) Royal Caribbean ceases to meet the Ownership Threshold (such rating agency should subsequently decline date of withdrawal, downgrade or cessation in clause (x) or (y), a “Reinstatement Date”), then the Issuer and its Restricted Subsidiaries will after the Reinstatement Date again be subject to below Baa3 the Suspended Covenants with respect to future events for the benefit of the Notes. On the Reinstatement Date, all Indebtedness incurred during a Suspension Period will be (i) classified as having been incurred or BBB-issued pursuant to the first paragraph of Section 4.06 or one of the clauses set forth in the definition of “Permitted Debt” (to the extent such Indebtedness would be permitted to be incurred thereunder as of the Reinstatement Date and after giving effect to Indebtedness incurred prior to the Suspension Period and outstanding on the Reinstatement Date) and (ii) subject to Section 4.06 and Section 4.15. To the extent such Indebtedness would not be so permitted to be incurred pursuant to Section 4.06, respectivelysuch Indebtedness will be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under clause (1) of the definition of “Permitted Debt.” To the extent Guarantees were incurred prior to or during a Suspension Period, the foregoing covenants will be reinstituted as of Issuer and from its Restricted Subsidiaries shall on the date of such rating declineReinstatement Date comply with Section 4.15. Calculations made after the Reinstatement Date of the amount available to be made as Restricted Payments under the reinstated Section 3.07 4.08 will be made as if Section 3.07 though such covenant had been in effect since from the date Issue Date and throughout the Suspension Period. Accordingly, Restricted Payments made during the Suspension Period not otherwise permitted pursuant to any of clauses (1) through (10) under Section 4.08(b) will reduce the Indentureamount available to be made as Restricted Payments under Section 4.08(a)(iii) to the extent provided therein; provided, except however, that the amount available to be made as a Restricted Payment on the Reinstatement Date shall not be reduced to below zero solely as a result of such Restricted Payments. Notwithstanding that the Suspended Covenants may be reinstated, no Default or Event of Default will be deemed to have occurred solely by reason as a result of a Restricted Payment made while failure to comply with the Suspended Covenants during a Suspension Period (or on the Reinstatement Date or after a Suspension Period based solely on events that covenant was suspended. Also, any encumbrance or restriction of the type referred to in Section 3.08 incurred occurred during the suspension period shall not result in a Default when such covenant is re-institutedSuspension Period).”
Appears in 1 contract
Samples: Second Supplemental Indenture (Royal Caribbean Cruises LTD)
Covenant Suspension. (a) If on any date following the date hereof Issue Date, (A) the Notes have an Investment Grade Rating from any two of DBRS, Xxxxx’x and S&P (the “Ratings Condition”), and (B) no Default has occurred and is continuing under this Indenture (the occurrence of (A) and (B) being collectively referred to as a “Covenant Suspension Event”), then beginning on that day and continuing all times thereafter until the Reversion Date (as defined below) the Issuer and its Restricted Subsidiaries will not be subject to the following provisions:
(i) Section 5.6;
(ii) Section 5.10;
(iii) Section 5.11;
(iv) Section 5.12;
(v) Section 5.13;
(vi) Section 5.14; and
(vii) Section 9.1(a)(iii) and 9.1(e)(iii), (collectively, the “Suspended Covenants”).
(b) In the event that the Issuer and its Restricted Subsidiaries are not subject to the Suspended Covenants for any period of time as a result of Section 5.17(a), and on any subsequent date (the “Reversion Date”) two of the applicable rating agencies withdraws their Investment Grade Rating or downgrades the rating assigned to the Notes are rated Baa3 below an Investment Grade Rating, or better by Xxxxx’x and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of Notes, then the control of Issuer and the Company, Restricted Subsidiaries will thereafter again be subject to the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within Suspended Covenants under this Indenture with respect to future events (subject to subsequent suspension if the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) Ratings Condition is met and (ii) no Default or Event of Default shall have has occurred and be is continuing, then, beginning on that day ). The period of time between the Covenant Suspension Event and subject the Reversion Date is referred to as the provisions of subsection “Suspension Period”.
(c) belowOn each Reversion Date, and notwithstanding anything all Indebtedness Incurred, or Disqualified Stock issued, during the Suspension Period will be classified as having been Incurred or issued pursuant to Section 5.11(a) or one of the clauses set forth in this Article 3 the definition of “Permitted Indebtedness” (to the contrary, extent such Indebtedness or Disqualified Stock would be permitted to be Incurred or issued thereunder as of the following covenants hereunder Reversion Date and after giving effect to Indebtedness Incurred or issued prior to the Suspension Period and outstanding on the Reversion Date). To the extent such Indebtedness or Disqualified Stock would not be so permitted to be Incurred or issued pursuant to Section 5.11(a) or one of the clauses set forth in the definition of “Permitted Indebtedness,” such Indebtedness or Disqualified Stock will be suspended:deemed to have been outstanding on the Issue Date, so that its Incurrence or issuance is deemed to be permitted.
(id) Calculations made after the Reversion Date of the amount available to be made as Restricted Payments under Section 3.06;
(ii) 5.10 will be made as though the provisions therein had been in effect since the Issue Date and throughout the Suspension Period such that Restricted Payments made during the Suspension Period will reduce the amount available to be made as Restricted Payments under Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c5.10(a).
(be) For purposes of Section 5.12, on the Reversion Date, any contractual encumbrances or restrictions of the type specified in Sections 5.12(a)(i), 5.12(a)(ii) or 5.12(a)(iii) entered into during the Suspension Period will be deemed to have been in effect on the Issue Date such that they are permitted under Section 5.12(b)(iv).
(f) For purposes of Section 5.13, on the Reversion Date, any contract, agreement, loan, advance or Guarantee with or for the benefit of any Affiliate of the Issuer entered into during the Suspension Period will be deemed to have been in effect on the Issue Date such that they are permitted under Section 5.13(b)(xiii).
(g) For purposes of Section 5.14, on the Reversion Date, the unutilized Excess Proceeds amount will be reset to zero.
(h) During any period that the foregoing covenants have been suspendeda Suspension Period, the Board of Directors Issuer may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted Subsidiary.”Subsidiaries.
(ci) Notwithstanding the foregoing, if the rating assigned by either such rating agency should subsequently decline to below Baa3 No Default or BBB-, respectively, the foregoing covenants will be reinstituted as Event of and from the date of such rating decline. Calculations under the reinstated Section 3.07 will be made as if Section 3.07 had been in effect since the date of the Indenture, except that no Default will be deemed to have occurred solely on the Reversion Date as a result of any actions taken by reason of a the Issuer or the Restricted Payment made while that covenant was suspended. Also, any encumbrance or restriction of the type referred to in Section 3.08 incurred Subsidiaries during the suspension period Suspension Period that would have been permitted only if the related Covenant Suspension Event had occurred. On and after each Reversion Date, the Issuer and the Restricted Subsidiaries shall not result in a Default when be permitted to consummate the transactions contemplated by any contract entered into during the Suspension Period so long as such covenant is re-institutedcontract and such consummation would have been permitted during such Suspension Period.”
Appears in 1 contract
Samples: Trust Indenture
Covenant Suspension. (a) If on at any date following the date hereof time (i) the Notes are rated Baa3 or better by Xxxxx’x and BBB- or better by S&P (or, if either such entity ceases rating assigned to rate the Notes for reasons outside of the control of the Companyby both S&P and Xxxxx’x is an Investment Grade Rating, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) and (ii) no Default or Event of Default shall have has occurred and be is continuing, thenand (iii) the Issuers have delivered to the Trustee an Officer’s Certificate certifying to the foregoing subclauses (i) and (ii), beginning on that day ARP and its Restricted Subsidiaries will not be subject to the provisions of subsection Section 4.08 (cother than the provisions set forth in Section 4.08(d) belowpermitting a Restricted Subsidiary to be designated as an Unrestricted Subsidiary), Sections 4.07, 4.09, 4.11, 4.12, 4.15 and notwithstanding anything 5.01(a)(iii) (collectively, the “Suspended Covenants”); provided however, ARP and its Restricted Subsidiaries will remain subject to the provisions of Sections 4.06, 4.10, 4.13, 4.18 and 5.01 (other than clause (a)(iii) thereof) of this Indenture and provided further, that if ARP and its Restricted Subsidiaries are not subject to the Suspended Covenants for any period of time as a result of the preceding portion of this sentence and, subsequently, either S&P or Moody’s withdraws its ratings or downgrades the ratings assigned to the Notes below the Investment Grade Ratings so that the Notes do not have an Investment Grade Rating from both S&P and Xxxxx’x, or a Default (other than with respect to the Suspended Covenants) occurs and is continuing, ARP and its Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants, subject to the terms, conditions and obligations set forth in this Article 3 to Indenture (each such date of reinstatement being the contrary, the following covenants hereunder will be suspended:
(i) Section 3.06;
(ii) Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c“Reinstatement Date”).
(b) During any period that Compliance with the foregoing covenants have been suspended, Suspended Covenants with respect to Restricted Payments made after the Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted Subsidiary.”
(c) Notwithstanding the foregoing, if the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants Reinstatement Date will be reinstituted calculated in accordance with the terms set forth in Section 4.08 as of and from the date of though such rating decline. Calculations under the reinstated Section 3.07 will be made as if Section 3.07 covenant had been in effect since the date of the Indenture, except that no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. Also, any encumbrance or restriction of the type referred to in Section 3.08 incurred during the suspension entire period shall of time from which the Notes are issued; provided, however, all Restricted Payments made, Indebtedness incurred and other actions effected during any period in which covenants are suspended will not result in cause a Default when such covenant is re-institutedunder this Indenture on any Reinstatement Date.”
Appears in 1 contract
Covenant Suspension. (a) If on any date following the date hereof Issue Date (i) the Notes are rated Baa3 or better by Xxxxx’x and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating have Investment Grade Ratings from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) both Rating Agencies and (ii) no Default or Event of Default shall have has occurred and is continuing under the Indenture (the occurrence of the events described in the foregoing clauses (i) and (ii) being collectively referred to as a “Covenant Suspension Event”), the Issuer and the Restricted Subsidiaries will not be continuing, then, beginning on that day and subject to the provisions of subsection covenants (cthe “Suspended Covenants”) below, and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder will be suspendeddescribed under:
(i1) Section 3.064.9;
(ii2) Section 3.074.10
(3) Section 4.12;
(iii4) Section 3.084.13;
(iv5) Section 3.094.14;
(v6) Section 3.104.15;
(7) Section 4.5;
(8) Section 5.1(d)(1);
(9) Section 4.17; and
(vi10) Section 9.01(c)4.8.
(b) During In the event that Parent and the Restricted Subsidiaries are not subject to the Suspended Covenants under this Indenture for any period that of time as a result of the foregoing covenants have been suspendedforegoing, and on any subsequent date (the Board “Reversion Date”) (a) one or both of Directors may not designate the Rating Agencies withdraw their Investment Grade Rating or downgrade the rating assigned to the Notes below an Investment Grade Rating or (b) Parent or any of its Subsidiaries as Unrestricted Subsidiaries pursuant affiliates enters into an agreement to effect a transaction that would result in a Change of Control and one or more of the Rating Agencies indicate that if consummated, such transaction (alone or together with any related recapitalization or refinancing transactions) would cause such Rating Agency to withdraw its Investment Grade Rating or downgrade the ratings assigned to the definition Notes below an Investment Grade Rating, then Parent and the Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants under the Indenture with respect to future events. The period beginning on the day of a Covenant Suspension Event and ending on a Reversion Date is called a “Unrestricted SubsidiarySuspension Period.”
(c) Notwithstanding On each Reversion Date, all Indebtedness incurred, or Disqualified Stock or Preferred Stock issued, during the foregoing, if the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants Suspension Period will be reinstituted deemed to have been outstanding on the Issue Date, so that it is classified as of and from the date of such rating declinepermitted under Section 4.9(b)(2). Calculations made after the Reversion Date of the amount available to be made as Restricted Payments under the reinstated Section 3.07 4.10 will be made as if though the covenant described under Section 3.07 4.10 had been in effect since the date Issue Date and throughout the Suspension Period. Accordingly, Restricted Payments made during the Suspension Period will reduce the amount available to be made as Restricted Payments under the first paragraph of Section 4.10 (but will not reduce any amounts available to be made as Restricted Payments under the Indenturesecond paragraph of Section 4.10). However, except that no Default or Event of Default will be deemed to have occurred on the Reversion Date (or thereafter) under any Suspended Covenant solely as a result of any actions taken by reason of a Parent or its Restricted Payment made while that covenant was suspendedSubsidiaries, or events occurring, during the Suspension Period. Also, any encumbrance or restriction For purposes of the type referred Section 4.13, on the Reversion Date, the unutilized Excess Proceeds amount will be reset to in Section 3.08 incurred during the suspension period shall not result in a Default when such covenant is re-institutedzero.”
Appears in 1 contract
Covenant Suspension. (a) If on any date following the date hereof (i) Issue Date, the Notes are rated either Baa3 or better by Xxxxx’x and or BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(FSection 3(a)(62) under of the Securities Exchange Act selected by the Company as a replacement agency) and (ii) no Default or Event of Default shall have has occurred and be is then continuing, thenthen upon delivery by the Company to the Trustee of an Officers’ Certificate to the foregoing effect, beginning on that day the Company and the Restricted Subsidiaries will no longer be subject to the provisions of subsection (c) below, and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder will be suspendedcovenants:
(i1) Section 3.064.7;
(ii2) Section 3.074.8;
(iii3) Section 3.084.9;
(iv4) Section 3.094.10;
(v5) Section 3.104.11;
(6) Section 4.15; and
(vi7) Section 9.01(c5.1(a)(3).
(b) . During any period that the foregoing covenants have been suspended, the Board of Directors of the Company may not designate any of its the Company’s Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted SubsidiarySection 4.16.”
(cb) Notwithstanding the foregoing, if the rating assigned to the Notes by either such rating agency both Rating Agencies should subsequently decline to below Baa3 or and BBB-, respectively, the foregoing covenants will be reinstituted reinstated as of and from the date of such rating decline. Any Debt Incurred during the period when the covenants are suspended will be classified as having been Incurred pursuant to Section 4.9(a) or one of the clauses of Section 4.9(b). To the extent such Debt would not be so permitted to be Incurred, such Debt will be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under clause (4) of Section 4.9(b). Calculations under the reinstated Section 3.07 4.7 will be made as if Section 3.07 4.7 had been in effect since the date of the this Indenture. However, except that no Default or Event of Default will be deemed to have occurred solely as a result of any actions taken by reason the Company or its Restricted Subsidiaries during the period when the covenants are suspended.
(c) Promptly following the occurrence of a Restricted Payment made while that covenant was suspended. Also, any encumbrance suspension or restriction reinstatement of the type referred covenants as described above, the Company shall provide an Officers’ Certificate to in Section 3.08 incurred during the Trustee regarding such occurrence. The Trustee shall have no obligation to independently determine or verify if a suspension period shall not result in or reinstatement has occurred or notify the Holders of any suspension or reinstatement. The Trustee may provide a Default when copy of such covenant is re-institutedOfficers’ Certificate to any Holder of the Notes upon request.”
Appears in 1 contract
Samples: Indenture (Group 1 Automotive Inc)
Covenant Suspension. (a) If on Notwithstanding any date provision of this Indenture or of the Notes to the contrary, if at any time following the date hereof of this Indenture (ia) the Notes are rated Baa3 or better by Xxxxx’x and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(FSection 3(a)(62) under of the Securities Exchange Act selected by the Company as a replacement agency) ), and (iib) no Default or Event of Default under this Indenture shall have occurred and be is continuing, thenSections 4.07, beginning on that day 4.08, 4.09, 4.10, 4.11, 4.16(a)(1), 4.16(c), and subject 4.19 and 5.01(a)(4) of this Indenture will be suspended and no Default or Event of Default shall result from any failure to comply with any of the provisions of subsection (c) below, and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder will be suspended:
(i) Section 3.06;
(ii) Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c).
(b) such Sections. During any period that the foregoing covenants Sections have been suspended, the Board of Directors of the Company may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to Section 4.19 hereof or clause (2) of the definition of “Unrestricted Subsidiary.”
(c) . Notwithstanding the foregoing, if on any subsequent date, the rating assigned by either such rating agency should subsequently decline Notes cease to below maintain ratings of at least Baa3 or BBB-BBB- from Xxxxx’x and S&P, respectively, the foregoing covenants will be reinstituted as of and from the date of such rating decline. Calculations under the reinstated Section 3.07 4.07 hereof will be made as if Section 3.07 4.07 hereof had been in effect since the date of the Indenture, this Indenture except that no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. Also, any encumbrance or restriction of the type referred to in Section 3.08 incurred during the suspension period shall not result in a Default when such covenant is re-instituted.”
Appears in 1 contract
Covenant Suspension. (a) If on any date following the date hereof of this Indenture: (ia) the Notes are rated Baa3 or better by Xxxxx’x and Mxxxx’x or BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(FSection 3(a)(62) under of the Securities Exchange Act selected by the Company as a replacement agency) ); and (iib) no Default or Event of Default shall have occurred and be continuingis continuing under this Indenture, then, beginning on that day date and subject to the provisions of subsection (cthis Section 4.18, Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.17 and Section 5.01(a)(4) below, and notwithstanding anything in of this Article 3 to the contrary, the following covenants hereunder Indenture will be suspended:
(i) Section 3.06;
(ii) Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c).
(b) . During any period that the foregoing covenants Sections have been suspendedsuspended (the “Suspension Period”), the Company’s Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to Section 4.17 hereof or the second paragraph of the definition of “Unrestricted SubsidiarySubsidiaries.”
(c) ” Notwithstanding the foregoing, if the rating ratings assigned to the Notes by either both such rating agency agencies should subsequently decline to below Baa3 and BBB- from Mxxxx’x or BBB-S&P, respectively, the foregoing covenants will be reinstituted as of and from the date of both such rating declineratings were below investment grade (the “Reversion Date”). Calculations under the reinstated Section 3.07 4.07 hereof will be made as if Section 3.07 4.07 hereof had been in effect since the date of the Indenture, this Indenture except that no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. AlsoFurthermore, all Indebtedness incurred, or Disqualified Stock or Preferred Stock issued, during the Suspension Period will be deemed to have been incurred or issued pursuant to Section 4.09(b)(2) hereof. In addition, for purposes of Section 4.11 hereof, all agreements and arrangements entered into by the Company or any encumbrance or restriction Restricted Subsidiary with an Affiliate of the type referred to in Section 3.08 incurred Company during the suspension period Suspension Period will be deemed to have been entered into prior to the date of this Indenture and permitted by Section 4.11(b)(7) hereof, and for purposes of Section 4.08 hereof, all contracts entered into during the Suspension Period that contain any of the restrictions contemplated by such covenant will be deemed to have been existing on the date of this Indenture. The Company shall promptly upon its occurrence deliver to the Trustee an Officers’ Certificate notifying the Trustee of the event giving rise to any Suspension Period or a Reversion Date, the date thereof and identifying the suspended covenants. The Trustee shall not result in have any obligation to monitor the ratings of the Notes, the occurrence or dates of any Suspension Period or Reversion Date and may rely conclusively on such Officers’ Certificate. The Trustee shall not have any obligation to notify the Holders of the occurrence or dates of any Suspension Period, suspended covenants or Reversion Date, but may provide a Default when copy of such covenant is re-institutedOfficers’ Certificate to any Holder of Notes upon request.”
Appears in 1 contract
Samples: Indenture (Comstock Resources Inc)
Covenant Suspension. During any period of time that:
(a) If on any date following the date hereof (i) the Notes are rated Baa3 or better by Xxxxx’x and BBB- or better by S&P have Investment Grade Ratings from both Rating Agencies; and
(or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) and (iib) no Default or Event of Default shall have has occurred and is continuing under this Indenture, the Company and the Restricted Subsidiaries shall not be continuingsubject to:
(1) Section 4.10,
(2) Section 4.11,
(3) Section 4.13,
(4) Section 4.14,
(5) Section 4.15,
(6) clauses (a)(1) and (b) of Section 4.16,
(7) clause (x) of the third paragraph (and such clause (x) as referred to in the first paragraph) of Section 4.17, thenand
(8) clause (v) of the first and second paragraphs of Section 5.01 (collectively, beginning on the “Suspended Covenants”), and payment of the Notes may not be accelerated because of an Event of Default specified in clauses (iii), (iv) or (v) of Section 6.01, in each case with respect to the Suspended Covenants only. In the event that day the Company and the Restricted Subsidiaries are not subject to the provisions Suspended Covenants and corresponding Events of subsection (c) belowDefault for any period of time as a result of the preceding sentence and, subsequently, one or both of the Rating Agencies withdraws its ratings or downgrades the ratings assigned to the Notes below the required Investment Grade Ratings or a Default or Event of Default occurs and is continuing, then the Company and the Restricted Subsidiaries shall thereafter again be subject to the Suspended Covenants and corresponding Events of Default, and notwithstanding anything in this Article 3 compliance with the Suspended Covenants with respect to Restricted Payments made after the contrary, the following covenants hereunder will be suspended:
(i) Section 3.06;
(ii) Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c).
(b) During any period that the foregoing covenants have been suspended, the Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted Subsidiary.”
(c) Notwithstanding the foregoing, if the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants will be reinstituted as of and from the date time of such rating decline. Calculations under withdrawal, downgrade, Default or Event of Default shall be calculated in accordance with the reinstated terms of Section 3.07 will be made 4.11 as if though such Section 3.07 4.11 had been in effect since the date of the Indenture, except that no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. Also, any encumbrance or restriction of the type referred to in Section 3.08 incurred during the suspension entire period shall not result in a Default when such covenant is re-institutedof time from the Issue Date.”
Appears in 1 contract
Samples: Indenture (Neenah Paper Inc)
Covenant Suspension. (a) If on at any date following the date hereof time (i1) the Notes are rated at least Baa3 or better by Xxxxx’x and at least BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the CompanyParent Guarantor, at least the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company Parent Guarantor as a replacement agency) ); and (ii2) at such time no Default or Event of Default shall have occurred and be continuing, continuing then, beginning on that day and on each day thereafter (subject to the provisions of subsection (cSection 4.19(c)) below, and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder (the “Suspended Covenants”) will be suspendedsuspended and the Parent Guarantor, the Company and the Restricted Subsidiaries shall not be subject to (and shall not be required to comply with) the Suspended Covenants:
(i) Section 3.064.11;
(ii) Section 3.074.08;
(iii) Section 3.084.07;
(iv) Section 3.094.13;
(v) clauses (1) and (3) of Section 3.104.14;
(vi) clause (5) of Section 5.01(a);
(vii) Section 4.09;
(viii) Section 4.15; and
(viix) Section 9.01(c)4.12.
(b) During any period that the foregoing covenants have been suspendedsuspended (each such period, a “Suspension Period”), the Parent Guarantor’s Board of Directors may not designate any of its Restricted Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted SubsidiarySection 4.15.”
(c) Notwithstanding the foregoingSection 4.19(a) and (b), if the rating assigned by either such rating agency Rating Agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants Suspended Covenants will be reinstituted on and as of and from the date of such rating decline. Calculations decline (such date, a “Reversion Date”) and on the Reversion Date and each date thereafter (subject to the provisions of Section 4.19(a)) the Parent Guarantor, the Company and the Restricted Subsidiaries shall be subject to (and shall be required to comply with) the Suspended Covenants.
(d) For purposes of calculating the amount available to be made as Restricted Payments under the reinstated Section 3.07 4.08(a)(3), calculations under that clause will be made as if Section 3.07 had been in effect since with reference to the date of the IndentureRestricted Payment, except as set forth in that no clause. Accordingly (x) Restricted Payments made during the Suspension Period that would not otherwise be permitted pursuant to any of clauses (b)(1) through (b)(14) of Section 4.08 will reduce the amount available to be made as Restricted Payments under Section 4.08(a)(3); provided, however, that the amount available to be made as a Restricted Payment shall not be reduced to below zero solely as a result of such Restricted Payments but may be reduced to below zero as a result of negative cumulative Consolidated Net Income during the Suspension Period for purposes of Section 4.08(a)(3)(A) and (y) the items specified in clauses (a)(3)(A) through (F) of Section 4.08 that occur during the Suspension Period will increase the amount available to be made as Restricted Payments under clause (a)(3) of Section 4.08. For purposes of Section 4.11, on each Reversion Date, the unutilized Excess Proceeds will be reset to zero. No Default or Event of Default will be deemed to have occurred or exist on the Reversion Date (or thereafter) under any Suspended Covenant, solely by reason as a result of, or as a result of a Restricted Payment made while that covenant was suspended. Alsothe continued existence on or after the Reversion Date of facts and circumstances arising from, any encumbrance actions taken by the Parent Guarantor, the Company or restriction any Restricted Subsidiaries thereof, or events occurring, or performance on or after the Reversion Date of the type referred to in Section 3.08 incurred any obligations arising from transactions which occurred, during the suspension period shall not result in a Default when such covenant is re-institutedSuspension Period.”
Appears in 1 contract
Samples: Supplemental Indenture (Laredo Petroleum Holdings, Inc.)
Covenant Suspension. (a) If Beginning on any date following the date hereof (the “Suspension Date”) that (i) the Notes are rated Baa3 have been assigned an Investment Grade Rating from one of the two Rating Agencies and a rating from the other Rating Agency of at least Ba1 in the case of Xxxxx’x or better by Xxxxx’x and BBB- or better by BB+ in the case of S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit or a comparable rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agencySuccessor Rating Agency) and (ii) no Default or Event of Default shall have has occurred and is continuing under this Indenture, and ending on the date (the “Reversion Date”) that either Rating Agency (or both Rating Agencies) downgrades the rating assigned by it to the Notes below the Investment Grade Rating or other specified rating, as applicable, or a Default or Event of Default has occurred and is continuing (such period of time from and including the Suspension Date to but excluding the Reversion Date, the “Suspension Period”), the Company and its Restricted Subsidiaries will not be continuing, then, beginning on that day and subject to the following provisions of subsection (c) below, and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder will be suspendedIndenture:
(i1) Section 3.064.03;
(ii2) Section 3.074.04;
(iii3) Section 3.084.05;
(iv4) Section 3.094.11;
(v5) Section 3.104.14;
(6) Section 4.15; and
(vi7) Section 9.01(c5.01(a)(2) (collectively, the “Suspended Covenants”).
(b) In addition, the Company may elect to suspend the Note Guarantees of any Subsidiary Guarantors.
(c) Notwithstanding the foregoing, the Company and the Restricted Subsidiaries will remain subject to the following provisions of this Indenture:
(1) Section 4.09;
(2) Section 4.13;
(3) Section 4.16;
(4) Section 4.17; and
(5) Section 5.01 (except to the extent set forth in Section 4.18(a)(7)).
(d) During any period that the foregoing covenants have been suspendedSuspension Period, the Company’s Board of Directors may not designate any of its the Company’s Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted SubsidiarySubsidiaries.”
(ce) Notwithstanding On the foregoingReversion Date, if all Indebtedness Incurred and Disqualified Capital Stock and Preferred Stock issued during the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants Suspension Period will be reinstituted deemed to have been outstanding on the Issue Date, so that it is classified as permitted under Section 4.03(b)(2).
(f) Calculations made after the Reversion Date of and from the date of such rating decline. Calculations amount available to be made as Restricted Payments under the reinstated Section 3.07 4.04 will be made as if though Section 3.07 4.04 had been in effect since the date Issue Date and throughout the Suspension Period. Accordingly, Restricted Payments made during the Suspension Period will reduce the amount available to be made as Restricted Payments under Section 4.04(a). For purposes of Section 4.05, on the Suspension Date, the Net Cash Proceeds amount will be reset to zero. Notwithstanding the reinstatement of the IndentureSuspended Covenants on the Reversion Date, except neither (a) the continued existence, on and after the Reversion Date, of facts and circumstances or obligations that no occurred, were Incurred or otherwise came into existence during a Suspension Period nor (b) the performance thereof, shall constitute a breach of any Suspended Covenant set forth in this Indenture or cause a Default will be deemed or Event of Default hereunder; provided, however, that (i) the Company and the Restricted Subsidiaries did not Incur or otherwise cause such facts and circumstances or obligations to have occurred solely by reason exist in anticipation of a Restricted Payment made while withdrawal or downgrade by either Rating Agency (or both Rating Agencies) of its Investment Grade Rating on the Notes and (ii) the Company reasonably believed that covenant was suspended. Also, any encumbrance such Incurrence or restriction of the type referred to in Section 3.08 incurred during the suspension period shall actions would not result in a Default when such covenant is re-institutedwithdrawal or downgrade.”
Appears in 1 contract
Samples: Indenture (Dana Inc)
Covenant Suspension. (a) If Notwithstanding any provision of this Indenture or of the Notes to the contrary, if on any date following the date hereof of this Indenture, (i1) the Notes are rated Baa3 or better by Xxxxx’x and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit receive an Investment Grade rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) both Ratings Agencies; and (ii2) no Default or Event of Default shall have occurred and be continuingcontinuing (collectively, a “Covenant Suspension Event” and the date thereof being referred to as the “Suspension Date”), then, beginning on that day the Suspension Date and subject to the provisions of subsection Section (c) belowb), Sections 4.07, 4.08, 4.09, Section 4.10, 4.11, 4.15, and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder 5.01(a)(4) hereof will be suspended:
(i) Section 3.06;
(ii) Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c).
(b) During any period that the foregoing covenants have been suspended, the Board of Directors of the General Partner may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted SubsidiarySection 4.15 hereof.”
(c) Notwithstanding the foregoing, if on any subsequent date (the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively“Reinstatement Date”), the foregoing covenants Notes cease to maintain an Investment Grade rating from both Ratings Agencies (in each case, or the equivalent), Sections 4.07, 4.08, 4.09, Section 4.10, 4.11, 4.15, and 5.01(a)(4) hereof will be reinstituted as of and from the date of such rating decline. Calculations under the reinstated Section 3.07 Section 4.07 hereof will be made as if Section 3.07 Section 4.07 hereof had been in effect since the date of the Indenture, this Indenture except that no Default default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. AlsoFurthermore, all Indebtedness incurred, or Disqualified Equity or Preferred Stock issued, during the period in which Sections 4.07, 4.08, 4.09, Section 4.10, 4.11, 4.15, and 5.01(a)(4) hereof were suspended will be deemed to have been incurred or issued pursuant to Section 4.09(b)(2) hereof.
(d) In addition, for purposes of Section 4.11 hereof, all agreements and arrangements entered into by the Partnership or any encumbrance or restriction Restricted Subsidiary with an Affiliate of the type referred to in Section 3.08 incurred Parent during the suspension period the foregoing covenants were suspended will be deemed to have been entered into prior to the date of this Indenture and permitted by Section (9) hereof, and for purposes of Section Section 4.08 hereof, all contracts entered into during period that Section 4.08 hereof was suspended that contain any of the restrictions contemplated by Section 4.08 hereof will be deemed to have been existing on the date of this Indenture.
(e) The Partnership shall not result in deliver to the Trustee an Officers’ Certificate notifying the Trustee of a Default when Covenant Suspension Event, Suspension Date or Reinstatement Date and identifying the suspended covenants. The Trustee shall have no duty to (i) monitor the ratings of the Notes, (ii) determine whether a Covenant Suspension Event, Suspension Date or Reversion Date has occurred, (iii) notify Holders of the Notes of any of the foregoing or (iv) determine the consequences thereof, but may provide a copy of such covenant is re-institutedOfficers’ Certificate to any Holder of the Notes upon request.”
Appears in 1 contract
Samples: Indenture (Hi-Crush Partners LP)
Covenant Suspension. During any period of time (aa “Suspension Period”) If on any date following the date hereof that (i) the Notes are rated Baa3 or better ratings assigned to all Tranche B-III 2019 Term Loans, Tranche B 2020 Term Loans, Tranche B-II 2022 Term Loans and Tranche B 2024 Term Loans by Xxxxx’x and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside both of the control of the Company, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) Rating Agencies are Investment Grade Ratings and (ii) no Default or Event of Default shall have has occurred and be is continuing, then, beginning on that day Level 3 and the Restricted Subsidiaries will not be subject to the provisions of subsection covenants set forth in Sections 6.01, 6.02, 6.03, 6.04, 6.06(i)(a), 6.07, 6.08 (cother than the first two sentences thereof), 6.09, 6.13(a)(3) belowand (4), 6.13(c)(3) and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder will be suspended:
(i4) Section 3.06;
(ii) Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c).
and clause (b) During of the first sentence of Section 6.10 (collectively, the “Suspended Covenants”). In the event that Level 3 and the Restricted Subsidiaries are not subject to the Suspended Covenants for any period that of time as a result of the foregoing covenants preceding sentence and, on any subsequent date (the “Reversion Date”), one or both of the Rating Agencies withdraws its ratings or downgrades the ratings assigned to the Loans below the required Investment Grade Ratings or a Default or Event of Default occurs and is continuing, then Level 3 and the Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants and calculations of the amount available to be made as Restricted Payments under Section 6.03 will be made as though Section 6.03 had been in effect during the entire period of time from the Measurement Date. On the Reversion Date, all Indebtedness Incurred during the Suspension Period will be classified to have been suspendedIncurred pursuant to paragraph (a) of Section 6.01 or one of the clauses set forth in paragraph (b) of Section 6.01 or paragraph (a) of Section 6.02 or one of the clauses set forth in paragraph (b) of Section 6.02 (in each case to the extent such Indebtedness would be permitted to be Incurred thereunder as of the Reversion Date and after giving effect to Indebtedness Incurred prior to the Suspension Period and outstanding on the Reversion Date). To the extent such Indebtedness would not be permitted to be Incurred pursuant to paragraph (a) of Section 6.01 or one of the clauses set forth in paragraph (b) of Section 6.01 or paragraph (a) of Section 6.02 or one of the clauses set forth in paragraph (b) of Section 6.02, such Indebtedness will be deemed to have been outstanding on the Measurement Date, so that it is classified as permitted under Section 6.01(b)(v) or Section 6.02(b)(iii). If the Incurrence of any Indebtedness by a Restricted Subsidiary during the Suspension Period would have been prohibited or 132 conditioned upon such Restricted Subsidiary entering into a Guarantee of the Obligations and a Loan Proceeds Note Guarantee had Section 6.01 and Section 6.02 been in effect at the time of such Incurrence, such Restricted Subsidiary shall enter into a Guarantee of the Obligations and a Loan Proceeds Note Guarantee that are senior to or pari passu with such Indebtedness within ten days after the Reversion Date. For purposes of determining compliance with Section 6.07 on the Reversion Date, the Net Available Proceeds from all Asset Dispositions not applied in accordance with the covenant will be deemed to be reset to zero. Notwithstanding the foregoing, neither (a) the continued existence, after the date of such withdrawal or downgrade, of facts and circumstances or obligations that were Incurred or otherwise came into existence during a Suspension Period nor (b) the performance of any such obligations, shall constitute a breach of any covenant set forth in the Agreement or cause a Default or Event of Default thereunder; provided, however, that (1) Level 3 and its Restricted Subsidiaries did not Incur or otherwise cause such facts and circumstances or obligations to exist in anticipation of a withdrawal or downgrade below investment grade, (2) Level 3 reasonably believed that such Incurrence or actions would not result in such a withdrawal or downgrade and (3) if so required each Restricted Subsidiary shall have entered into a Guarantee of the Obligations and a Loan Proceeds Note Guarantee within the specified time period. For purposes of clauses (1) and (2) in the preceding sentence, anticipation and reasonable belief may be determined by Level 3 and shall be conclusively evidenced by a board resolution to such effect adopted in good faith by the Board of Directors of Level 3. In reaching their determination, the Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to Level 3 may, but need not, consult with the definition of “Unrestricted SubsidiaryRating Agencies.”
(c) Notwithstanding the foregoing, if the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants will be reinstituted as of and from the date of such rating decline. Calculations under the reinstated Section 3.07 will be made as if Section 3.07 had been in effect since the date of the Indenture, except that no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. Also, any encumbrance or restriction of the type referred to in Section 3.08 incurred during the suspension period shall not result in a Default when such covenant is re-instituted.”
Appears in 1 contract
Samples: Credit Agreement
Covenant Suspension. (a) If on at any date following the date hereof time (i1) the Notes are rated at least Baa3 or better by Xxxxx’x and at least BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, at least the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) ); and (ii2) at such time no Default or Event of Default shall have has occurred and be is continuing, then, beginning on that day and subject to the provisions of subsection on each day thereafter until a Reversion Date, if any (c) below, and notwithstanding anything as described in this Article 3 to the contrarySection 4.19(c)), the following covenants hereunder (the “Suspended Covenants”) will be suspendedsuspended and the Company and the Restricted Subsidiaries shall not be subject to (and shall not be required to comply with) the Suspended Covenants:
(i) Section 3.064.11;
(ii) Section 3.074.08;
(iii) Section 3.084.07;
(iv) Section 3.094.13;
(v) clauses (1) and (3) of Section 3.104.14;
(vi) clause (4) of Section 5.01(a);
(vii) Section 4.09;
(viii) Section 4.15; and
(viix) Section 9.01(c)4.12.
(b) During any period that the foregoing covenants have been suspendedsuspended (each such period, a “Suspension Period”), the Company’s Board of Directors may not designate any of its Restricted Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted SubsidiarySection 4.15.”
(c) Notwithstanding the foregoingSections 4.19(a) and (b), if the rating assigned by either such rating agency Xxxxx’x or S&P should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants Suspended Covenants will be reinstituted as of and from the date of such rating decline. Calculations decline (such date, a “Reversion Date”) and on the Reversion Date and on each date thereafter (subject to the provisions of Section 4.19(a)) the Company and the Restricted Subsidiaries shall be subject to (and shall be required to comply with) the Suspended Covenants.
(d) For purposes of calculating the amount available to be made as Restricted Payments under the reinstated Section 3.07 4.08(a)(3), calculations under that clause will be made as if Section 3.07 had been in effect since with reference to the date of the IndentureRestricted Payment, except as set forth in that no clause. Accordingly (x) Restricted Payments made during the Suspension Period that would not otherwise be permitted pursuant to any of clauses (b)(1) through (b)(14) of Section 4.08 will reduce the amount available to be made as Restricted Payments under Section 4.08(a)(3); provided, however, that the amount available to be made as a Restricted Payment shall not be reduced to below zero solely as a result of such Restricted Payments but may be reduced to below zero as a result of negative cumulative Consolidated Net Income during the Suspension Period for purposes of Section 4.08(a)(3)(A) and (y) the items specified in clauses (a)(3)(A) through (F) of Section 4.08 that occur during the Suspension Period will increase the amount available to be made as Restricted Payments under clause (a)(3) of Section 4.08. For purposes of Section 4.11, on each Reversion Date, the unutilized Excess Proceeds will be reset to zero. No Default or Event of Default will be deemed to have occurred or exist on a Reversion Date (or thereafter) under any Suspended Covenant, solely by reason as a result of, or as a result of the continued existence on or after a Restricted Payment made while that covenant was suspended. AlsoReversion Date of facts and circumstances arising from, any encumbrance actions taken by the Company or restriction any Restricted Subsidiaries thereof, or events occurring, or performance on or after a Reversion Date of the type referred to in Section 3.08 incurred any obligations arising from transactions which occurred, during the suspension period shall not result in a Default when such covenant is re-institutedSuspension Period.”
Appears in 1 contract
Covenant Suspension. During any period of time (aa “Suspension Period”) If on any date following the date hereof that (i) the Notes are rated Baa3 or better ratings assigned to all Tranche B-III 2019 Term Loans, Tranche B 2020 Term Loans, Tranche B-II 2022 Term Loans and Tranche B 2024 Term Loans by Xxxxx’x and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside both of the control of the Company, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) Rating Agencies are Investment Grade Ratings and (ii) no Default or Event of Default shall have has occurred and be is continuing, then, beginning on that day Level 3 and the Restricted Subsidiaries will not be subject to the provisions of subsection covenants set forth in Sections 6.01, 6.02, 6.03, 6.04, 6.06(i)(a), 6.07, 6.08 (cother than the first two sentences thereof), 6.09, 6.13(a)(3) belowand (4), 6.13(c)(3) and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder will be suspended:
(i4) Section 3.06;
(ii) Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c).
and clause (b) During of the first sentence of Section 6.10 (collectively, the “Suspended Covenants”). In the event that Level 3 and the Restricted Subsidiaries are not subject to the Suspended Covenants for any period that of time as a result of the foregoing covenants preceding sentence and, on any subsequent date (the “Reversion Date”), one or both of the Rating Agencies withdraws its ratings or downgrades the ratings assigned to the Loans below the required Investment Grade Ratings or a Default or Event of Default occurs and is continuing, then Level 3 and the Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants and calculations of the amount available to be made as Restricted Payments under Section 6.03 will be made as though Section 6.03 had been in effect during the entire period of time from the Measurement Date. On the Reversion Date, all Indebtedness Incurred during the Suspension Period will be classified to have been suspendedIncurred pursuant to paragraph (a) of Section 6.01 or one of the clauses set forth in paragraph (b) of Section 6.01 or paragraph (a) of Section 6.02 or one of the clauses set forth in paragraph (b) of Section 6.02 (in each case to the extent such Indebtedness would be permitted to be Incurred thereunder as of the Reversion Date and after giving effect to Indebtedness Incurred prior to the Suspension Period and outstanding on the Reversion Date). To the extent such Indebtedness would not be permitted to be Incurred pursuant to paragraph (a) of Section 6.01 or one of the clauses set forth in paragraph (b) of Section 6.01 or paragraph (a) of Section 6.02 or one of the clauses set forth in paragraph (b) of Section 6.02, such Indebtedness will be deemed to have been outstanding on the Measurement Date, so that it is classified as permitted under Section 6.01(b)(v) or Section 6.02(b)(iii). If the Incurrence of any Indebtedness by a Restricted Subsidiary during the Suspension Period would have been prohibited or conditioned upon such Restricted Subsidiary entering into a Guarantee of the Obligations and a Loan Proceeds Note Guarantee had Section 6.01 and Section 6.02 been in effect at the time of such Incurrence, such Restricted Subsidiary shall enter into a Guarantee of the Obligations and a Loan Proceeds Note Guarantee that are senior to or pari passu with such Indebtedness within ten days after the Reversion Date. For purposes of determining compliance with Section 6.07 on the Reversion Date, the Net Available Proceeds from all Asset Dispositions not applied in accordance with the covenant will be deemed to be reset to zero. Notwithstanding the foregoing, neither (a) the continued existence, after the date of such withdrawal or downgrade, of facts and circumstances or obligations that were Incurred or otherwise came into existence during a Suspension Period nor (b) the performance of any such obligations, shall constitute a breach of any covenant set forth in the Agreement or cause a Default or Event of Default thereunder; provided, however, that (1) Level 3 and its Restricted Subsidiaries did not Incur or otherwise cause such facts and circumstances or obligations to exist in anticipation of a withdrawal or downgrade below investment grade, (2) Level 3 reasonably believed that such Incurrence or actions would not result in such a withdrawal or downgrade and (3) if so required each Restricted Subsidiary shall have entered into a Guarantee of the Obligations and a Loan Proceeds Note Guarantee within the specified time period. For purposes of clauses (1) and (2) in the preceding sentence, anticipation and reasonable belief may be determined by Level 3 and shall be conclusively evidenced by a board resolution to such effect adopted in good faith by the Board of Directors of Level 3. In reaching their determination, the Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to Level 3 may, but need not, consult with the definition of “Unrestricted SubsidiaryRating Agencies.”
(c) Notwithstanding the foregoing, if the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants will be reinstituted as of and from the date of such rating decline. Calculations under the reinstated Section 3.07 will be made as if Section 3.07 had been in effect since the date of the Indenture, except that no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. Also, any encumbrance or restriction of the type referred to in Section 3.08 incurred during the suspension period shall not result in a Default when such covenant is re-instituted.”
Appears in 1 contract
Covenant Suspension. (a) If on any date following the date hereof Issue Date: (i) the Notes are rated both Baa3 or better by Xxxxx’x and BBB- BBB-or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(FSection 3(a)(62) under the Securities Exchange Act Act, selected by the Company as a replacement agency) and (ii) no Default or Event of Default shall have occurred and be continuing, then, beginning on that day (the “Suspension Date”) and subject to the provisions of subsection (c) below, and notwithstanding anything in this Article 3 to the contrarySection 4.18(b), the covenants specifically listed under the following covenants hereunder sections of this Indenture will be suspended:
(i) Section 3.06;
(ii) Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c: Sections 4.08, 4.09, 4.10, 4.11(a)(i), 4.11(c), 4.12, 4.13, 4.14(a)(i), 4.14(a)(ii), 4.14(c), 4.17 and 5.01(a)(iii).
(b) During any period that the foregoing covenants have been suspended, the Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted Subsidiary.”
(c) Notwithstanding the foregoing, if the rating assigned by either such rating agency should subsequently decline to below and the Notes are not rated both Baa3 or BBB-better by Xxxxx’x and BBB- or better by S&P (or if either such agency ceases to rate the Notes, respectivelythe equivalent investment grade credit rating from another nationally recognized statistical rating organization), the foregoing covenants will be reinstituted reinstated as of and from the date of such rating declinedecline (the “Reversion Date”). Notwithstanding that the suspended covenants may be reinstated, no Default will be deemed to have occurred as a result of a failure to comply with such suspended covenants during any period such covenants have been suspended.
(c) The period of time between the Suspension Date and the Reversion Date is referred to as the “Suspension Period.” Calculations under the reinstated Section 3.07 4.09 will be made as if Section 3.07 such covenant had been in effect since the date of Issue Date. Accordingly, Restricted Payments made during the IndentureSuspension Period will reduce the amount available to be made as Restricted Payments under Section 4.09(a), except that no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. AlsoOn each Reversion Date, any encumbrance all Indebtedness Incurred during the Suspension Period will be classified as having been Incurred pursuant to Section 4.10(a) or restriction Section 4.10(b) (to the extent such Indebtedness would be permitted to be Incurred thereunder as of the type referred Reversion Date and after giving effect to Indebtedness Incurred prior to the Suspension Period and outstanding on the Reversion Date). To the extent such Indebtedness would not be so permitted to be Incurred pursuant to either Section 4.10(a) or 4.10(b), such Indebtedness will be deemed to have been Existing Indebtedness, so that it is classified as permitted under Section 4.10(b)(ii).
(d) During any period that the foregoing covenants have been suspended, the Company’s Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to Section 4.14 unless such designation would have been permitted if a Suspension Period had not been in Section 3.08 incurred during effect at such time. The Company shall give the suspension period Trustee written notice of the occurrence of a Suspension Period or any Reversion Date. Until the Trustee’s receipt of notice of a Suspension Date, the Trustee shall not result assume the suspended covenants apply and are in a Default when such covenant is re-institutedfull force.”
Appears in 1 contract
Covenant Suspension. Notwithstanding anything herein or in any other Loan Document to the contrary:
(a) If if, on any date following date, all of the Covenant Suspension Conditions have been satisfied and the Lead Borrower shall have delivered notice in writing to the Administrative Agent electing to commence a Covenant Suspension Period as of the date hereof set forth in such notice, then, beginning on such date (the “Covenant Suspension Date”) and continuing to but excluding the first date on which the Investment Grade Rating Condition is no longer satisfied (such period, the “Covenant Suspension Period” and such later date, the “Covenant Reinstatement Date”), the provisions of each Collateral Document and each Intercreditor Agreement (if any) and the provisions set forth herein and in the other Loan Documents that expressly apply when a Covenant Suspension Period is not in effect, including, but not limited to, Sections 3.3(b), 3.16, 5.1(c)(ii)(y), 5.1(c)(iv), 5.2(b), 5.5(c), 5.5(d), 5.9(b), 5.9(c), 5.10, 5.11(b), 6.2(z), 6.2(dd), 6.2(ee), 6.4(c), 6.4(d), 6.4(e), 6.5, 6.6, 6.7 and 6.8 and clauses (o) and (p) and the last paragraph of Article VII (collectively, the “Suspended Provisions”) shall no longer be applicable (it being understood that the Suspended Provisions shall be reinstated on each Covenant Reinstatement Date);
(b) during a Covenant Suspension Period, Holdings and its Subsidiaries shall be entitled to consummate transactions to the extent not prohibited hereunder without giving effect to the Suspended Provisions;
(c) at all times when a Covenant Suspension Period is not in effect, Sections 6.1, 6.2(cc), 6.4(a) and 6.4(b) shall not apply;
(d) in the event of any reinstatement of the Suspended Provisions upon any Covenant Reinstatement Date, no action taken or omitted to be taken by Holdings or any of its Subsidiaries prior to such reinstatement will give rise to a Default or Event of Default under this Agreement or any other Loan Document; provided that (i) all Liens incurred during the Notes are rated Baa3 or better Covenant Suspension Period in reliance on Section 6.2(cc) will be classified as having been incurred pursuant to Section 6.2(b), (ii) all Indebtedness incurred during the Covenant Suspension Period will be classified as having been incurred pursuant to Section 6.5(w), and (iii) all Investments made during the Covenant Suspension Period will be classified as having been made pursuant to Section 6.8(g); and
(e) no later than 10 Business Days after the occurrence of (i) each Covenant Suspension Date, the Lead Borrower shall deliver to the Administrative Agent a certificate signed by Xxxxx’x and BBB- or better by S&P (ora Financial Officer of Holdings certifying that, if either as of such entity ceases to rate the Notes for reasons outside Covenant Suspension Date, Holdings is in compliance with each of the control financial covenant levels set forth in Sections 6.4(a) and (b) (in each case as though tested as of such date; provided that for the Companypurpose of such tests, Consolidated EBITDA shall mean Consolidated EBITDA for the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within most recently ended period of four (4) consecutive fiscal quarters for which financial statements have been (or were required to be) furnished to the meaning of Rule 15c3-1(c)(2)(vi)(FAdministrative Agent pursuant to Section 5.1(a) under or (b), as the Securities Exchange Act selected by the Company as a replacement agencycase may be) and (ii) no Default or Event of Default each Covenant Reinstatement Date, the Lead Borrower shall have occurred and be continuing, then, beginning on that day and subject deliver to the provisions Administrative Agent a certificate signed by a Financial Officer of subsection Holdings certifying that, as of such Covenant Reinstatement Date, Holdings is in compliance with each of the financial covenant levels set forth in Sections 6.4(c), (cd) belowand (e) (in each case as though tested as of such date; provided that for the purpose of such tests, (x) Total Equity shall be calculated as of the last day of the fiscal quarter or fiscal year most recently ended on or prior to such date, and notwithstanding anything in this Article 3 (y) Consolidated EBITDA shall be calculated for the most recently ended period of four (4) consecutive fiscal quarters for which financial statements have been (or were required to be) furnished to the contraryAdministrative Agent pursuant to Section 5.1(a) or (b), as the following covenants hereunder will be suspended:
case may be), which certificate shall, in the case of each of clauses (i) Section 3.06;
and (ii) Section 3.07;
), be accompanied by reasonably detailed supporting calculations (iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(cand in any case no more detailed that the level of detail required to be included in the Compliance Certificate).
(b) During any period that the foregoing covenants have been suspended, the Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted Subsidiary.”
(c) Notwithstanding the foregoing, if the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants will be reinstituted as of and from the date of such rating decline. Calculations under the reinstated Section 3.07 will be made as if Section 3.07 had been in effect since the date of the Indenture, except that no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. Also, any encumbrance or restriction of the type referred to in Section 3.08 incurred during the suspension period shall not result in a Default when such covenant is re-instituted.”
Appears in 1 contract
Samples: Revolving Credit Agreement (CF Industries Holdings, Inc.)
Covenant Suspension. (a) If on During any date following the date hereof period of time that:
(i) the Notes are rated Baa3 or better by Xxxxx’x and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating have Investment Grade Ratings from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) and both Rating Agencies; and
(ii) no Default or Event of Default shall have has occurred and is continuing under this Indenture, the Company and the Restricted Subsidiaries will not be continuing, then, beginning on that day and subject to the following provisions of subsection this Indenture: - Section 4.09, - Section 4.10, - Section 4.11, - Section 4.13, - Section 4.14, - Section 4.15, - Section 4.16(d)(i) (cand such Section 4.16(d)(i) belowas referred to in Section 4.16(b)), - Section 4.20, and notwithstanding anything in this Article 3 to the contrary- Section 5.01(a)(v), (a)(vi), (b)(v) and (b)(vi) (collectively, the following covenants hereunder will be suspended:
(i) Section 3.06;
(ii) Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c"Suspended Covenants").
(b) During In the event that the Company and the Restricted Subsidiaries are not subject to the Suspended Covenants for any period that of time as a result of clause (a) of this Section 4.21 and, subsequently, one or both of the foregoing covenants have been suspended, Rating Agencies withdraws its ratings or downgrades the Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant ratings assigned to the definition Notes below the required Investment Grade Ratings or a Default or Event of “Unrestricted Subsidiary.”
(c) Notwithstanding Default occurs and is continuing, then the foregoingCompany and the Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants, if and compliance with the rating assigned by either Suspended Covenants with respect to Restricted Payments made after the time of such rating agency should subsequently decline to below Baa3 withdrawal, downgrade, Default or BBB-, respectively, the foregoing covenants Event of Default will be reinstituted calculated in accordance with the terms of Section 4.11 as of and from the date of though such rating decline. Calculations under the reinstated Section 3.07 will be made as if Section 3.07 4.11 had been in effect since during the date entire period of time from the IndentureIssue Date, except it being understood that no Default will be deemed to have occurred solely actions taken by reason the Company or any of a its Restricted Payment made while that covenant was suspended. Also, any encumbrance or restriction of the type referred to in Section 3.08 incurred Subsidiaries during the suspension period shall not result in constitute a Default when such covenant is re-institutedor an Event of Default under the Suspended Covenants.”
Appears in 1 contract
Samples: Indenture (Tousa Delaware Inc)
Covenant Suspension. (a) If on at any date following the date hereof time (i1) the Notes are rated at least Baa3 or better by Xxxxx’x and at least BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, at least the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) ); and (ii2) at such time no Default or Event of Default shall have occurred and be continuing, is continuing then, beginning on that day and subject to the provisions of subsection on each day thereafter until a Reversion Date, if any (c) below, and notwithstanding anything as described in this Article 3 to the contrarySection 4.19(c)), the following covenants hereunder (the “Suspended Covenants”) will be suspendedsuspended and the Company and the Restricted Subsidiaries shall not be subject to (and shall not be required to comply with) the Suspended Covenants:
(i) Section 3.064.11;
(ii) Section 3.074.08;
(iii) Section 3.084.07;
(iv) Section 3.094.13;
(v) clauses (1) and (3) of Section 3.104.14;
(vi) clause (4) of Section 5.01(a);
(vii) Section 4.09;
(viii) Section 4.15; and
(viix) Section 9.01(c)4.12.
(b) During any period that the foregoing covenants have been suspendedsuspended (each such period, a “Suspension Period”), the Company’s Board of Directors may not designate any of its Restricted Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted SubsidiarySection 4.15.”
(c) Notwithstanding the foregoingSections 4.19(a) and (b), if the rating assigned by either such rating agency Rating Agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants Suspended Covenants will be reinstituted as of and from the date of such rating decline. Calculations decline (such date, a “Reversion Date”) and on the Reversion Date and each date thereafter (subject to the provisions of Section 4.19(a)) the Company and the Restricted Subsidiaries shall be subject to (and shall be required to comply with) the Suspended Covenants.
(d) For purposes of calculating the amount available to be made as Restricted Payments under the reinstated Section 3.07 4.08(a)(v)(3), calculations under that clause will be made as if Section 3.07 had been in effect since with reference to the date of the IndentureRestricted Payment, except as set forth in that no clause. Accordingly (x) Restricted Payments made during the Suspension Period that would not otherwise be permitted pursuant to any of clauses (b)(1) through (b)(14) of Section 4.08 will reduce the amount available to be made as Restricted Payments under Section 4.08(a)(v)(3); provided, however, that the amount available to be made as a Restricted Payment shall not be reduced to below zero solely as a result of such Restricted Payments but may be reduced to below zero as a result of negative cumulative Consolidated Net Income during the Suspension Period for purposes of Section 4.08(a)(v)(3)(A) and (y) the items specified in clauses (a)(3)(A) through (F) of Section 4.08 that occur during the Suspension Period will increase the amount available to be made as Restricted Payments under clause (a)(3) of Section 4.08. For purposes of Section 4.11, on each Reversion Date, the unutilized Excess Proceeds will be reset to zero. No Default or Event of Default will be deemed to have occurred or exist on a Reversion Date (or thereafter) under any Suspended Covenant, solely by reason as a result of, or as a result of the continued existence on or after a Restricted Payment made while that covenant was suspended. AlsoReversion Date of facts and circumstances arising from, any encumbrance actions taken by the Company or restriction any Restricted Subsidiaries thereof, or events occurring, or performance on or after a Reversion Date of the type referred to in Section 3.08 incurred any obligations arising from transactions which occurred, during the suspension period shall not result in a Default when such covenant is re-institutedSuspension Period.”
Appears in 1 contract
Samples: Indenture (Laredo Petroleum, Inc.)
Covenant Suspension. (a) If on at any date following the date hereof time (i) the rating assigned to the Notes are rated Baa3 or better by Xxxxx’x and BBB- or better by S&P and Xxxxx’x (or, if either of such entity (but not both) ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating from ratings assigned to the Notes by any two of S&P, Xxxxx’x and any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(FSection 3(a)(62) under of the Securities Exchange Act selected by the Company as a replacement agency) and is an Investment Grade Rating, (ii) no Default or Event of Default shall have has occurred and be continuing, then, beginning on that day is continuing under this Indenture and subject (iii) the Issuers have delivered to the provisions of subsection (c) below, and notwithstanding anything in this Article 3 Trustee an Officers’ Certificate certifying to the contrarymatters specified in clauses (i) and (ii) of this Section 4.19(a) as of the date of such certificate, the following covenants hereunder provisions will be suspended:
suspended (icollectively, the “Suspended Covenants”) Section 3.06;
beginning on such date (iithe “Suspension Date”) Section 3.07;
and continuing until the Reinstatement Date (iii) Section 3.08;
(iv) such period, the “Suspension Period”): Section 3.09;
(v) , Section 3.10; and
(vi) 4.07, Section 9.01(c4.08, Section 4.09, Section 4.10, Section 4.11, Section 4.17, Section 4.20, and Section 5.01(a)(iv). However, the Company and its Restricted Subsidiaries will remain subject to all of the other provisions of this Indenture. No Subsidiaries shall be designated as Unrestricted Subsidiaries during any Suspension Period.
(b) During Thereafter, if either S&P or Xxxxx’x (or any period rating agency substituted therefor as described in Section 4.19(a)) withdraws its ratings or downgrades the ratings assigned to the Notes below the Investment Grade Rating so that the foregoing covenants Notes do not have been suspendedan Investment Grade Rating from both S&P and Xxxxx’x (or two of S&P, Xxxxx’x and any rating agency substituted therefor as described above), the Board Company and its Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants, subject to the terms, conditions and obligations set forth in this Indenture (each such date of Directors may not designate reinstatement being the “Reinstatement Date”). The Issuers shall give prompt notice to the Trustee of any of its Subsidiaries as Unrestricted Subsidiaries Reinstatement Date pursuant to an Officers’ Certificate. Compliance with the definition of “Unrestricted Subsidiary.”
(c) Notwithstanding Suspended Covenants with respect to Restricted Payments made after the foregoing, if the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants Reinstatement Date will be reinstituted calculated in accordance with Section 4.07 as of and from the date of such rating decline. Calculations under the reinstated though Section 3.07 will be made as if Section 3.07 4.07 had been in effect since during the date entire period of time from which the Indenture, except Notes are issued; provided that no Default will or Event of Default shall be deemed to have occurred solely by reason as a result of a Restricted Payment made while any failure to comply with any Suspended Covenant that covenant was suspended. Also, occurs during any encumbrance or restriction period during which such Suspended Covenants are not in effect.
(c) The Trustee will not have any obligation to monitor the ratings of the type Notes, the occurrence or dates of any Suspension Date, Suspension Period or Reinstatement Date and may rely conclusively on the Officers’ Certificates referred to in Section 3.08 incurred during above. The Trustee will not have any obligation to notify the suspension period shall not result in Holders of the occurrence or dates of any Suspension Date, Suspension Period or Reinstatement Date or of the Suspended Covenants, but may provide a Default when copy of such covenant is re-institutedOfficers’ Certificates to any Holder upon request.”
Appears in 1 contract
Covenant Suspension. During any period of time (aa “Suspension Period”) If on any date following the date hereof that (i) the Notes are rated Baa3 or better ratings assigned to all Tranche A Term Loans, Tranche B Term Loans and Tranche B II Term Loans by Xxxxx’x and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside both of the control of the Company, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) Rating Agencies are Investment Grade Ratings and (ii) no Default or Event of Default shall have has occurred and be is continuing, then, beginning on that day Level 3 and the Restricted Subsidiaries will not be subject to the provisions of subsection covenants set forth in Sections 6.01, 6.02, 6.03, 6.04, 6.06(i)(a), 6.07, 6.08 (cother than the first two sentences thereof), 6.09, 6.13(a)(3) belowand (4), 6.13(c)(3) and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder will be suspended:
(i4) Section 3.06;
(ii) Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c).
and clause (b) During of the first sentence of Section 6.10 (collectively, the “Suspended Covenants”). In the event that Level 3 and the Restricted Subsidiaries are not subject to the Suspended Covenants for any period that of time as a result of the foregoing covenants preceding sentence and, on any subsequent date (the “Reversion Date”), one or both of the Rating Agencies withdraws its ratings or downgrades the ratings assigned to the Loan below the required Investment Grade Ratings or a Default or Event of Default occurs and is continuing, then Level 3 and the Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants and calculations of the amount available to be made as Restricted Payments under Section 6.03 will be made as though Section 6.03 had been in effect during the entire period of time from the Measurement Date. On the Reversion Date, all Indebtedness Incurred during the Suspension Period will be classified to have been suspendedIncurred pursuant to paragraph (a) of Section 6.01 or one of the clauses set forth in paragraph (b) of Section 6.01 or paragraph (a) of Section 6.02 or one of the clauses set forth in paragraph (b) of Section 6.02 (in each case to the extent such Indebtedness would be permitted to be Incurred thereunder as of the Reversion Date and after giving effect to Indebtedness Incurred prior to the Suspension Period and outstanding on the Reversion Date). To the extent such Indebtedness would not be permitted to be Incurred pursuant to paragraph (a) of Section 6.01 or one of the clauses set forth in paragraph (b) of Section 6.01 or paragraph (a) of Section 6.02 or one of the clauses set forth in paragraph (b) of Section 6.02, such Indebtedness will be deemed to have been outstanding on the Measurement Date, so that it is classified as permitted under Section 6.01(b)(v) or Section 6.02(b)(iii). If the Incurrence of any Indebtedness by a Restricted Subsidiary during the Suspension Period would have been prohibited or conditioned upon such Restricted Subsidiary entering into a Guarantee of the Obligations and a Loan Proceeds Note Guarantee had Section 6.01 and Section 6.02 been in effect at the time of such Incurrence, such Restricted Subsidiary shall enter into a Guarantee of the Obligations and a Loan Proceeds Note Guarantee that are senior to or pari passu with such Indebtedness within ten days after the Reversion Date. For purposes of determining compliance with Section 6.07 on the Reversion Date, the Net Available Proceeds from all Asset Dispositions not applied in accordance with the covenant will be deemed to be reset to zero. Notwithstanding the foregoing, neither (a) the continued existence, after the date of such withdrawal or downgrade, of facts and circumstances or obligations that were Incurred or otherwise came into existence during a Suspension Period nor (b) the performance of any such obligations, shall constitute a breach of any covenant set forth in the Agreement or cause a Default or Event of Default thereunder; provided, however, that (1) Level 3 and its Restricted Subsidiaries did not Incur or otherwise cause such facts and circumstances or obligations to exist in anticipation of a withdrawal or downgrade below investment grade, (2) Level 3 reasonably believed that such Incurrence or actions would not result in such a withdrawal or downgrade and (3) if so required each Restricted Subsidiary shall have entered into a Guarantee of the Obligations and a Loan Proceeds Note Guarantee within the specified time period. For purposes of clauses (1) and (2) in the preceding sentence, anticipation and reasonable belief may be determined by Level 3 and shall be conclusively evidenced by a board resolution to such effect adopted in good faith by the Board of Directors of Level 3. In reaching their determination, the Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to Level 3 may, but need not, consult with the definition of “Unrestricted SubsidiaryRating Agencies.”
(c) Notwithstanding the foregoing, if the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants will be reinstituted as of and from the date of such rating decline. Calculations under the reinstated Section 3.07 will be made as if Section 3.07 had been in effect since the date of the Indenture, except that no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. Also, any encumbrance or restriction of the type referred to in Section 3.08 incurred during the suspension period shall not result in a Default when such covenant is re-instituted.”
Appears in 1 contract
Covenant Suspension. (a) If on Notwithstanding any date provision of this Indenture or of the Notes to the contrary, if at any time following the date hereof of this Indenture (ia) the Notes are rated Baa3 or better by Xxxxx’x and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the CompanyIssuer, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(FSection 3(a)(62) under of the Securities Exchange Act selected by the Company Issuer as a replacement agency) and ), (iib) no Default or Event of Default shall have occurred and be continuingis continuing under this Indenture and (c) the Issuer has delivered to the Trustee an Officer’s Certificate certifying to such events, then, then beginning on that day day, Sections 3.09, 4.07, 4.08, 4.09, 4.10, 4.11, 4.16, 4.17 and subject 5.01(a)(4) of this Indenture will no longer be applicable to the Notes and no Default or Event of Default shall result from any failure to comply with any of the provisions of subsection such Sections (c) belowsuch period, a “Suspension Period”), the Notes will be entitled to substantially less covenant protection. In the event of any Suspension Period as a result of the foregoing, and notwithstanding anything in on any subsequent date (such date, a “Reversion Date”) the Notes are no longer rated Baa3 or better by Xxxxx’x and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Issuer, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act selected by the Issuer as a replacement agency), then the Issuer and its Restricted Subsidiaries will thereafter again be subject to such covenants under this Article 3 Indenture with respect to future events. The Issuer shall promptly upon its occurrence deliver to the contraryTrustee, an Officer’s Certificate notifying the following covenants hereunder Trustee of the occurrence of any Suspension Date or Reversion Date, and the date thereof. The Trustee shall not have any obligation to monitor the occurrence or dates of any Suspension Date or Reversion Date or to independently determine or verify if such events have occurred and may rely conclusively on such Officer’s Certificate. The Trustee shall not have any obligation to notify the Holders of the occurrence or dates of any Suspension Date or Reversion Date. On each Reversion Date, all Indebtedness Incurred during the Suspension Period will be suspended:
(i) Section 3.06;
(ii) Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c).
(b) During any period that the foregoing covenants have classified as having been suspended, the Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries incurred pursuant to the definition covenants described below under Section 4.09 hereof (to the extent such Indebtedness would be permitted to be incurred or issued thereunder as of “Unrestricted Subsidiary.”
(c) Notwithstanding the foregoingReversion Date and after giving effect to Indebtedness incurred prior to the Suspension Period and outstanding on the Reversion Date). To the extent such Indebtedness would not be so permitted to be incurred pursuant to Section 4.09 hereof, if the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants Indebtedness will be reinstituted as of and from deemed to have been outstanding on the date of such rating declinethis Indenture, so that it is classified as permitted under Section 4.09(b)(2) hereof. Calculations made after the Reversion Date of the amount available to be made as Restricted Payments under the reinstated Section 3.07 4.07 hereof will be made as if Section 3.07 though such covenant had been in effect since the date of this Indenture and prior, but not during, the Suspension Period; provided that any Subsidiaries designated as Restricted Subsidiaries during the Suspension Period shall automatically become Restricted Subsidiaries on the Reversion Date (subject to the Issuer’s right to subsequently designate them as Unrestricted Subsidiaries in compliance with Section 4.17 hereof. Accordingly, Restricted Payments made during the Suspension Period will not reduce the amount available to be made as Restricted Payments under Section 4.07 hereof. In addition: (i) for purposes of Section 4.11 hereof, all agreements and arrangements entered into by the Issuer and any Restricted Subsidiary with an Affiliate of the Issuer during the Suspension Period prior to such Reversion Date will be deemed to have been entered into prior to the date of this Indenture; (ii) for purposes of Section 4.08 hereof, except all contracts entered into during the Suspension Period prior to such Reversion Date that no contain any of the restrictions contemplated by such covenant will be deemed to have been entered pursuant to Section 4.08(b)(1) hereof and (iii) for purposes of Section 4.12 hereof, any Lien incurred during a Suspension Period will be deemed to have been incurred pursuant to clause (7) of the definition of “Permitted Liens.” No Default or Event of Default will be deemed to have occurred solely on the Reversion Date as a result of any actions taken by reason of a the Issuer or its Restricted Payment made while that covenant was suspended. Also, any encumbrance or restriction of the type referred to in Section 3.08 incurred Subsidiaries during the suspension period Suspension Period. Within 30 days of such Reversion Date, the Issuer shall not result in a Default when such covenant is re-institutedcomply with the terms of Section 4.16 hereof and with the terms set forth under Section 11.02(c) hereof. For purposes of Section 4.10 hereof on the Reversion Date, the unutilized Excess Proceeds amount will be reset to zero.”
Appears in 1 contract
Samples: Indenture (SunCoke Energy, Inc.)
Covenant Suspension. (a) If on any date following the date hereof Issue Date, (A) the Notes have an Investment Grade Rating from any two of DBRS, Xxxxx’x and S&P (the “Ratings Condition”), and (B) no Default has occurred and is continuing under this Indenture (the occurrence of (A) and (B) being collectively referred to as a “Covenant Suspension Event”), then beginning on that day and continuing all times thereafter until the Reversion Date (as defined below) the Issuer and its Restricted Subsidiaries will not be subject to the following provisions:
(i) Section 5.6;
(ii) Section 5.10;
(iii) Section 5.11;
(iv) Section 5.12;
(v) Section 5.13;
(vi) Section 5.14; and
(vii) Section 9.1(a)(iii) and 9.1(e)(iii), (collectively, the “Suspended Covenants”).
(b) In the event that the Issuer and its Restricted Subsidiaries are not subject to the Suspended Covenants for any period of time as a result of Section 5.17(a), and on any subsequent date (the “Reversion Date”) two of the applicable rating agencies withdraws their Investment Grade Rating or downgrades the rating assigned to the Notes are rated Baa3 below an Investment Grade Rating, or better by Xxxxx’x and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of Notes, then the control of Issuer and the Company, Restricted Subsidiaries will thereafter again be subject to the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within Suspended Covenants under this Indenture with respect to future events (subject to subsequent suspension if the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) Ratings Condition is met and (ii) no Default or Event of Default shall have has occurred and be is continuing, then, beginning on that day ). The period of time between the Covenant Suspension Event and subject the Reversion Date is referred to as the provisions of subsection “Suspension Period”.
(c) belowOn each Reversion Date, and notwithstanding anything all Indebtedness Incurred, or Disqualified Stock issued, during the Suspension Period will be classified as having been Incurred or issued pursuant to Section 5.11(a) or one of the clauses set forth in this Article 3 the definition of “Permitted Indebtedness” (to the contrary, extent such Indebtedness or Disqualified Stock would be permitted to be Incurred or issued thereunder as of the following covenants hereunder Reversion Date and after giving effect to Indebtedness Incurred or issued prior to the Suspension Period and outstanding on the Reversion Date). To the extent such Indebtedness or Disqualified Stock would not be so permitted to be Incurred or issued pursuant to Section 5.11(a) or one of the clauses set forth in the definition of “Permitted Indebtedness,” such Indebtedness or Disqualified Stock will be suspended:deemed to have been outstanding on the Issue Date, so that its Incurrence or issuance is deemed to be permitted.
(id) Calculations made after the Reversion Date of the amount available to be made as Restricted Payments under Section 3.06;
(ii) 5.10 will be made as though the provisions therein had been in effect since the Issue Date and throughout the Suspension Period such that Restricted Payments made during the Suspension Period will reduce the amount available to be made as Restricted Payments under Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c5.10(a).
(be) For purposes of Section 5.12, on the Reversion Date, any contractual encumbrances or restrictions of the type specified in Sections 5.12(a)(i), 5.12(a)(ii) or 5.12(a)(iii) entered into during the Suspension Period will be deemed to have been in effect on the Issue Date such that they are permitted under Section 5.12(b)(iv).
(f) For purposes of Section 5.13, on the Reversion Date, any contract, agreement, loan, advance or Guarantee with or for the benefit of any Affiliate of the Issuer entered into during the Suspension Period will be deemed to have been in effect on the Issue Date such that they are permitted under Section 5.13(b)(xiii).
(g) For purposes of Section 5.14, on the Reversion Date, the unutilized Excess Proceeds amount will be reset to zero.
(h) During any period that the foregoing covenants have been suspendeda Suspension Period, the Board of Directors Issuer may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted SubsidiarySubsidiaries.”
(ci) Notwithstanding the foregoing, if the rating assigned by either such rating agency should subsequently decline to below Baa3 No Default or BBB-, respectively, the foregoing covenants will be reinstituted as Event of and from the date of such rating decline. Calculations under the reinstated Section 3.07 will be made as if Section 3.07 had been in effect since the date of the Indenture, except that no Default will be deemed to have occurred solely on the Reversion Date as a result of any actions taken by reason of a the Issuer or the Restricted Payment made while that covenant was suspended. Also, any encumbrance or restriction of the type referred to in Section 3.08 incurred Subsidiaries during the suspension period Suspension Period that would have been permitted only if the related Covenant Suspension Event had occurred. On and after each Reversion Date, the Issuer and the Restricted Subsidiaries shall not result in a Default when be permitted to consummate the transactions contemplated by any contract entered into during the Suspension Period so long as such covenant is re-institutedcontract and such consummation would have been permitted during such Suspension Period.”
Appears in 1 contract
Samples: Trust Indenture
Covenant Suspension. During any period of time (aa “Suspension Period”) If on any date following the date hereof that (i) the Notes are rated Baa3 or better ratings assigned to all Tranche A Term Loans, Tranche B Term Loans, Tranche B II Term Loans, Tranche B III Term Loans, Tranche B 2019 Term Loans, Tranche B 2016 Term Loans, Tranche B-II 2019 Term Loans and Tranche B-III 2019 Term Loans by Xxxxx’x and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside both of the control of the Company, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) Rating Agencies are Investment Grade Ratings and (ii) no Default or Event of Default shall have has occurred and be is continuing, then, beginning on that day Level 3 and the Restricted Subsidiaries will not be subject to the provisions of subsection covenants set forth in Sections 6.01, 6.02, 6.03, 6.04, 6.06(i)(a), 6.07, 6.08 (cother than the first two sentences thereof), 6.09, 6.13(a)(3) belowand (4), 6.13(c)(3) and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder will be suspended:
(i4) Section 3.06;
(ii) Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c).
and clause (b) During of the first sentence of Section 6.10 (collectively, the “Suspended Covenants”). In the event that Level 3 and the Restricted Subsidiaries are not subject to the Suspended Covenants for any period that of time as a result of the foregoing covenants preceding sentence and, on any subsequent date (the “Reversion Date”), one or both of the Rating Agencies withdraws its ratings or downgrades the ratings assigned to the Loan below the required Investment Grade Ratings or a Default or Event of Default occurs and is continuing, then Level 3 and the Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants and calculations of the amount available to be made as Restricted Payments under Section 6.03 will be made as though Section 6.03 had been in effect during the entire period of time from the Measurement Date. On the Reversion Date, all Indebtedness Incurred during the Suspension Period will be classified to have been suspendedIncurred pursuant to paragraph (a) of Section 6.01 or one of the clauses set forth in paragraph (b) of Section 6.01 or paragraph (a) of Section 6.02 or one of the clauses set forth in paragraph (b) of Section 6.02 (in each case to the extent such Indebtedness would be permitted to be Incurred thereunder as of the Reversion Date and after giving effect to Indebtedness Incurred prior to the Suspension Period and outstanding on the Reversion Date). To the extent such Indebtedness would not be permitted to be Incurred pursuant to paragraph (a) of Section 6.01 or one of the clauses set forth in paragraph (b) of Section 6.01 or paragraph (a) of Section 6.02 or one of the clauses set forth in paragraph (b) of Section 6.02, such Indebtedness will be deemed to have been outstanding on the Measurement Date, so that it is classified as permitted under Section 6.01(b)(v) or Section 6.02(b)(iii). If the Incurrence of any Indebtedness by a Restricted Subsidiary during the Suspension Period would have been prohibited or conditioned upon such Restricted Subsidiary entering into a Guarantee of the Obligations and a Loan Proceeds Note Guarantee had Section 6.01 and Section 6.02 been in effect at the time of such Incurrence, such Restricted Subsidiary shall enter into a Guarantee of the Obligations and a Loan Proceeds Note Guarantee that are senior to or pari passu with such Indebtedness within ten days after the Reversion Date. For purposes of determining compliance with Section 6.07 on the Reversion Date, the Net Available Proceeds from all Asset Dispositions not applied in accordance with the covenant will be deemed to be reset to zero. Notwithstanding the foregoing, neither (a) the continued existence, after the date of such withdrawal or downgrade, of facts and circumstances or obligations that were Incurred or otherwise came into existence during a Suspension Period nor (b) the performance of any such obligations, shall constitute a breach of any covenant set forth in the Agreement or cause a Default or Event of Default thereunder; provided, however, that (1) Level 3 and its Restricted Subsidiaries did not Incur or otherwise cause such facts and circumstances or obligations to exist in anticipation of a withdrawal or downgrade below investment grade, (2) Level 3 reasonably believed that such Incurrence or actions would not result in such a withdrawal or downgrade and (3) if so required each Restricted Subsidiary shall have entered into a Guarantee of the Obligations and a Loan Proceeds Note Guarantee within the specified time period. For purposes of clauses (1) and (2) in the preceding sentence, anticipation and reasonable belief may be determined by Level 3 and shall be conclusively evidenced by a board resolution to such effect adopted in good faith by the Board of Directors of Level 3. In reaching their determination, the Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to Level 3 may, but need not, consult with the definition of “Unrestricted SubsidiaryRating Agencies.”
(c) Notwithstanding the foregoing, if the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants will be reinstituted as of and from the date of such rating decline. Calculations under the reinstated Section 3.07 will be made as if Section 3.07 had been in effect since the date of the Indenture, except that no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. Also, any encumbrance or restriction of the type referred to in Section 3.08 incurred during the suspension period shall not result in a Default when such covenant is re-instituted.”
Appears in 1 contract
Covenant Suspension. (a) If on any date following the date hereof (i) Issue Date, the Notes are rated either Baa3 or better by Xxxxx’x and or BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(FSection 3(a)(62) under of the Securities Exchange Act selected by the Company as a replacement agency) and (ii) no Default or Event of Default shall have has occurred and be is then continuing, thenthen upon delivery by the Company to the Trustee of an Officers’ Certificate to the foregoing effect, beginning on that day the Company and the Restricted Subsidiaries will no longer be subject to the provisions of subsection (c) below, and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder will be suspendedcovenants:
(i1) Section 3.064.7;
(ii2) Section 3.074.8;
(iii3) Section 3.084.9;
(iv4) Section 3.094.10;
(v5) Section 3.104.11;
(6) Section 4.15; and
(vi7) Section 9.01(c5.1(a)(3).
(b) . During any period that the foregoing covenants have been suspended, the Board of Directors may Company shall not designate any of its the Company’s Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted SubsidiarySection 4.16.”
(cb) Notwithstanding the foregoing, if the rating assigned to the Notes by either such rating agency both Rating Agencies should subsequently decline to below Baa3 or and BBB-, respectively, the foregoing covenants will be reinstituted reinstated as of and from the date of such rating decline, subject to further suspension in the future upon the satisfaction of the conditions described in Section 4.17(a) above. Any Debt Incurred during the period when the covenants are suspended will be classified as having been Incurred pursuant to Section 4.9(a) or one of the clauses of Section 4.9(b). To the extent such Debt would not be so permitted to be Incurred, such Debt will be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under clause (4) of Section 4.9(b). Calculations under the reinstated Section 3.07 4.7 will be made as if Section 3.07 4.7 had been in effect since the date Issue Date. However, no Default or Event of the Indenture, except that no Default will be deemed to have occurred solely with respect to the suspended covenants as a result of any actions taken by reason the Company or its Restricted Subsidiaries during the period when such covenants are suspended.
(c) Promptly following the occurrence of a Restricted Payment made while that covenant was suspended. Also, any encumbrance suspension or restriction reinstatement of the type referred covenants as described above, the Company shall provide an Officers’ Certificate to in Section 3.08 incurred during the Trustee regarding such occurrence. The Trustee shall have no obligation to independently determine or verify if a suspension period shall not result in or reinstatement has occurred or notify the Holders of any suspension or reinstatement. The Trustee may provide a Default when copy of such covenant is re-institutedOfficers’ Certificate to any Holder of the Notes upon request.”
Appears in 1 contract
Samples: Indenture (Group 1 Automotive Inc)
Covenant Suspension. (a) If on at any date following the date hereof time (ia) the rating assigned to the Notes are rated Baa3 or better by both S&P and Xxxxx’x and BBB- or better by S&P is an Investment Grade Rating (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the Notes also receive the equivalent investment grade credit rating from any other another “nationally nationally-recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act and the rules and regulations thereunder selected by the Company as a replacement agency) and (iib) no Default or Event of Default shall have has occurred and is continuing hereunder, the Company and its Restricted Subsidiaries will no longer be continuing, then, beginning on that day and subject to the following provisions of subsection this Indenture (c) below, and notwithstanding anything in this Article 3 to the contrarycollectively, the following covenants hereunder will be suspended:“Suspended Covenants”):
(i1) Section 3.064.07 (“Restricted Payments”);
(ii2) Section 3.074.08 (“Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries”);
(iii3) Section 3.084.09 (“Incurrence of Indebtedness and Issuance of Preferred Stock”);
(iv4) Section 3.094.10 (“Asset Sales”);
(v5) Section 3.104.11 (“Transactions with Affiliates”);
(6) Section 4.16 (“Designation of Restricted and Unrestricted Subsidiaries”); and
(vi7) Section 9.01(c5.01(a)(4) (Clause (4) of paragraph (a) of “Merger, Consolidation or Sale of Assets”).
(b) During any period that After the foregoing covenants have been suspended, the Board of Directors Company may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted Subsidiary.”
(c) Notwithstanding the foregoingThereafter, if either S&P or Moody’s (or such other replacement agency) downgrades the rating ratings assigned by either to the Notes below the Investment Grade Rating, the Company and its Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants, subject to the terms, conditions and obligations set forth in this Indenture (each such rating agency should subsequently decline date of reinstatement being the “Reinstatement Date”); provided, however, that no Default, Event of Default or breach of any kind shall be deemed to below Baa3 exist or BBB-have occurred hereunder, respectivelythe Notes or the Guarantees with respect to the foregoing suspended covenants based on, and neither the Company nor any Restricted Subsidiary or Guarantor shall bear any liability for, any actions taken or events occurring during the period the foregoing covenants were suspended, or any actions taken at any time pursuant to any contractual obligation arising prior to the date the foregoing covenants were reinstated, regardless of whether such actions or events would have been permitted if the applicable Suspended Covenants remained in effect during such period.
(d) On the date the foregoing covenants are reinstated, (1) all Indebtedness incurred during the suspension period will be reinstituted as of and from deemed to have been outstanding on the date of hereof, so that it is classified as permitted under Section 4.09(b)(2) hereof, (2) all Liens, Investments, affiliate transactions and consensual encumbrances or restrictions in existence at such rating decline. Calculations under the reinstated Section 3.07 time will be deemed to have been outstanding or existing on the date hereof and (3) the unutilized Excess Proceeds amount will be reset to zero. Compliance with the Suspended Covenants with respect to Restricted Payments made after the Reinstatement Date will be calculated in accordance with the terms of Section 4.07 hereof as if Section 3.07 though such covenant had not been in effect since during the date entire period of time that the Indenture, except that covenants were suspended and no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. Also.
(e) For purposes of Section 4.11 hereof, all agreements and arrangements entered into by the Company or any encumbrance or restriction Restricted Subsidiary with an Affiliate of the type referred Company after the covenants have been suspended but prior to in the Reinstatement Date will be deemed to have been entered into prior to the date hereof and permitted by Section 3.08 incurred during 4.11(b)(4) hereof, and for purposes of Section 4.08 hereof, all contracts entered into after the suspension period shall not result in a Default when covenants have been suspended but prior to the Reinstatement Date that contain any of the restrictions contemplated by such covenant is re-institutedwill be deemed to have been existing on the date hereof. As a result, during any period in which the Company and its Restricted Subsidiaries are not subject to the Suspended Covenants, the Holders will be entitled to substantially reduced covenant protection. The Company will provide the Trustee with an Officer’s Certificate stating that covenants have been suspended or reinstated.”
Appears in 1 contract
Covenant Suspension. (a) If on at any date following the date hereof time (i1) the Notes are rated at least Baa3 or better by Xxxxx’x and at least BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, at least the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) ); and (ii2) at such time no Default or Event of Default shall have occurred and be continuing, is continuing then, beginning on that day and on each day thereafter (subject to the provisions of subsection (c) below, and notwithstanding anything in this Article 3 to the contrarySection 4.19(c)), the following covenants hereunder (the “Suspended Covenants”) will be suspendedsuspended and the Company and the Restricted Subsidiaries shall not be subject to (and shall not be required to comply with) the Suspended Covenants:
(i) Section 3.064.11;
(ii) Section 3.074.08;
(iii) Section 3.084.07;
(iv) Section 3.094.13;
(v) clauses (1) and (3) of Section 3.104.14;
(vi) clause (4) of Section 5.01(a);
(vii) Section 4.09;
(viii) Section 4.15; and
(viix) Section 9.01(c)4.12.
(b) During any period that the foregoing covenants have been suspendedsuspended (each such period, a “Suspension Period”), the Company’s Board of Directors may not designate any of its Restricted Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted SubsidiarySection 4.15.”
(c) Notwithstanding the foregoingSections 4.19(a) and (b), if the rating assigned by either such rating agency Rating Agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants Suspended Covenants will be reinstituted on and as of and from the date of such rating decline. Calculations decline (such date, a “Reversion Date”) and on the Reversion Date and each date thereafter (subject to the provisions of Section 4.19(a)) the Company and the Restricted Subsidiaries shall be subject to (and shall be required to comply with) the Suspended Covenants.
(d) For purposes of calculating the amount available to be made as Restricted Payments under the reinstated Section 3.07 4.08(a)(v)(3), calculations under that clause will be made as if Section 3.07 had been in effect since with reference to the date of the IndentureRestricted Payment, except as set forth in that no clause. Accordingly (x) Restricted Payments made during the Suspension Period that would not otherwise be permitted pursuant to any of clauses (b)(1) through (b)(14) of Section 4.08 will reduce the amount available to be made as Restricted Payments under Section 4.08(a)(v)(3); provided, however, that the amount available to be made as a Restricted Payment shall not be reduced to below zero solely as a result of such Restricted Payments but may be reduced to below zero as a result of negative cumulative Consolidated Net Income during the Suspension Period for purposes of Section 4.08(a)(v)(3)(A) and (y) the items specified in clauses (a)(v)(3)(A) through (F) of Section 4.08 that occur during the Suspension Period will increase the amount available to be made as Restricted Payments under clause (a)(v)(3) of Section 4.08. For purposes of Section 4.11, on each Reversion Date, the unutilized Excess Proceeds will be reset to zero. No Default or Event of Default will be deemed to have occurred or exist on the Reversion Date (or thereafter) under any Suspended Covenant, solely by reason as a result of, or as a result of a Restricted Payment made while that covenant was suspended. Alsothe continued existence on or after the Reversion Date of facts and circumstances arising from, any encumbrance actions taken by the Company or restriction any Restricted Subsidiaries thereof, or events occurring, or performance on or after the Reversion Date of the type referred to in Section 3.08 incurred any obligations arising from transactions which occurred, during the suspension period shall not result in a Default when such covenant is re-institutedSuspension Period.”
Appears in 1 contract
Samples: Indenture (Laredo Petroleum, Inc.)
Covenant Suspension. (a) If Beginning on any date following the date hereof (the “Suspension Date”) that (i) the Notes are rated Baa3 or better by Xxxxx’x and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating have been assigned an Investment Grade Rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) both Rating Agencies and (ii) no Default or Event of Default shall have has occurred and is continuing under this Indenture, and ending on the date (the “Reversion Date”) that either Rating Agency (or both Rating Agencies) downgrades the rating assigned by it to the Notes below the Investment Grade Rating, or a Default or Event of Default has occurred and is continuing (such period of time from and including the Suspension Date to but excluding the Reversion Date, the “Suspension Period”), the Company and its Restricted Subsidiaries will not be continuing, then, beginning on that day and subject to the following provisions of subsection (c) below, and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder will be suspendedIndenture:
(i1) Section 3.064.03;
(ii2) Section 3.074.04;
(iii3) Section 3.084.05;
(iv4) Section 3.094.11;
(v5) Section 3.104.12;
(6) Section 4.14;
(7) Section 4.15; and
(vi8) Section 5.01(a)(2) Section 9.01(c(collectively, the “Suspended Covenants”).
(b) In addition, the Company may at its sole discretion elect to suspend the Note Guarantees. Such election shall be evidenced by an Officers’ Certificate of the Company delivered to the Trustee certifying compliance with the foregoing provisions.
(c) Notwithstanding the foregoing, the Company and its Restricted Subsidiaries will remain subject to the following provisions of this Indenture:
(1) Section 4.09;
(2) Section 4.13;
(3) Section 4.16;
(4) Section 4.17; and
(5) Section 5.01 (except to the extent set forth in Section 4.18(a)(8)).
(d) During any period that the foregoing covenants have been suspendedSuspension Period, the Company’s Board of Directors may not designate any of its the Company’s Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted SubsidiarySubsidiaries.”
(ce) Notwithstanding On the foregoingReversion Date, if all Indebtedness Incurred and Disqualified Capital Stock and Preferred Stock issued during the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants Suspension Period will be reinstituted deemed to have been outstanding on the Issue Date, so that it is classified as permitted under Section 4.03(b)(2).
(f) Calculations made after the Reversion Date of and from the date of such rating decline. Calculations amount available to be made as Restricted Payments under the reinstated Section 3.07 4.04 will be made as if though Section 3.07 4.04 had been in effect since the date of Issue Date and throughout the IndentureSuspension Period. Accordingly, except that no Default Restricted Payments made during the Suspension Period will reduce the amount available to be made as Restricted Payments under Section 4.04(a) and will be deemed to have occurred solely by reason been made under such Section 4.04(a). For purposes of Section 4.05, on the Suspension Date, the Net Cash Proceeds amount will be reset to zero. Notwithstanding the reinstatement of the Suspended Covenants on the Reversion Date, neither (a) the continued existence, on and after the Reversion Date, of facts and circumstances or obligations that occurred, were Incurred or otherwise came into existence during a Suspension Period nor (b) the performance thereof, shall constitute a breach of any Suspended Covenant set forth in this Indenture or cause a Default or Event of Default thereunder; provided, however, that (i) the Company and the Restricted Subsidiaries did not Incur or otherwise cause such facts and circumstances or obligations to exist in anticipation of a Restricted Payment made while withdrawal or downgrade by either Rating Agency (or both Rating Agencies) of its Investment Grade Rating on the Notes and (ii) the Company reasonably believed that covenant was suspended. Also, any encumbrance such Incurrence or restriction of the type referred to in Section 3.08 incurred during the suspension period shall actions would not result in a Default when such covenant is re-institutedwithdrawal or downgrade.”
Appears in 1 contract
Samples: Indenture (Visteon Corp)
Covenant Suspension. (a) If on any date following the date hereof Issue Date (i) the Notes are rated Baa3 or better by Xxxxx’x and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating have Investment Grade Ratings from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) both Rating Agencies and (ii) no Default has occurred and is continuing under this Indenture (the occurrence of the events described in the foregoing clauses (i) and (ii) being collectively referred to as a “Covenant Suspension Event”), the Company and its Restricted Subsidiaries will not be subject to the following covenants (collectively, the “Suspended Covenants”):
(1) Section 5.07;
(2) Section 5.08;
(3) Section 5.09;
(4) Section 5.10;
(5) Section 5.11;
(6) Section 5.13 (except as such Section relates to the Company maintaining its corporate existence);
(7) Section 5.14;
(8) Section 5.17;
(9) Section 5.18;
(10) Section 5.21;
(11) Section 5.22; and
(12) clause (a)(iii) of Section 6.01 In the event that the Company and its Restricted Subsidiaries are not subject to the Suspended Covenants under this Indenture for any period of time as a result of the foregoing, and on any subsequent date (the “Reversion Date”) both of the Rating Agencies (a) withdraw their Investment Grade Rating or downgrade the rating assigned to the Notes below an Investment Grade Rating and/or (b) the Company or any of its Affiliates enter into an agreement to effect a transaction that would result in a Change of Control and one or more of the Rating Agencies indicate that if consummated, such transaction (alone or together with any related recapitalization or refinancing transactions) would cause such Rating Agency to withdraw its Investment Grade Rating or downgrade the ratings assigned to the Notes below an Investment Grade Rating, then the Company and its Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants under this Indenture with respect to future events, including, without limitation, a proposed transaction described in clause (b) above. The period of time between the occurrence of a Covenant Suspension Event and the Reversion Date is referred to in this description as the “Suspension Period.” Additionally, upon the occurrence of a Covenant Suspension Event, the amount of Excess Proceeds from Net Cash Proceeds shall be reset at zero. In the event of any such reinstatement, no action taken or omitted to be taken by the Company or any of its Restricted Subsidiaries prior to such reinstatement will give rise to a Default or Event of Default shall have occurred and under this Indenture with respect to the Notes; provided that (1) with respect to Restricted Payments made after any such reinstatement, the amount of Restricted Payments made will be continuing, then, beginning on that day and subject to calculated as though the provisions of subsection (c) below, and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder will be suspended:
(i) Section 3.06;
(ii) Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c).
(b) During any period that the foregoing covenants have been suspended, the Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted Subsidiary.”
(c) Notwithstanding the foregoing, if the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants will be reinstituted as of and from the date of such rating decline. Calculations under the reinstated Section 3.07 will be made as if Section 3.07 5.07 had been in effect since prior to, but not during the date of Suspension Period, provided that any Subsidiaries designated as Unrestricted Subsidiaries during the IndentureSuspension Period shall automatically become Restricted Subsidiaries on the Reversion Date (subject to the Company’s right to subsequently designate them as Unrestricted Subsidiaries in compliance with the covenants set forth under Article 5) and (2) all Indebtedness incurred, except that no Default or Disqualified Stock or Preferred Stock issued, during the Suspension Period will be deemed classified as having been incurred or issued pursuant to have occurred solely by reason Section 5.09(b)(8). The Company shall provide a written notice to the Trustee upon the occurrence of a Restricted Payment made while Covenant Suspension Event or a Reversion Date. There can be no assurance that covenant was suspended. Also, any encumbrance the Notes will ever achieve or restriction of the type referred to in Section 3.08 incurred during the suspension period shall not result in a Default when such covenant is re-institutedmaintain Investment Grade Ratings.”
Appears in 1 contract
Covenant Suspension. (a) If on at any date following the date hereof time (i1) the Notes are rated at least Baa3 or better by Xxxxx’x and at least BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, at least the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) ); and (ii2) at such time no Default or Event of Default shall have occurred and be continuing, continuing then, beginning on that day and on each day thereafter (subject to the provisions of subsection (cSection 4.19(c)) below, and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder (the “Suspended Covenants”) will be suspendedsuspended and the Company and the Restricted Subsidiaries shall not be subject to (and shall not be required to comply with) the Suspended Covenants:
(i) Section 3.064.11;
(ii) Section 3.074.08;
(iii) Section 3.084.07;
(iv) Section 3.094.13;
(v) clauses (1) and (3) of Section 3.104.14;
(vi) clause (4) of Section 5.01(a);
(vii) Section 4.09;
(viii) Section 4.15; and
(viix) Section 9.01(c)4.12.
(b) During any period that the foregoing covenants have been suspendedsuspended (each such period, a “Suspension Period”), the Company’s Board of Directors may not designate any of its Restricted Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted SubsidiarySection 4.15.”
(c) Notwithstanding the foregoingSection 4.19(a) and (b), if the rating assigned by either such rating agency Rating Agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants Suspended Covenants will be reinstituted on and as of and from the date of such rating decline. Calculations decline (such date, a “Reversion Date”) and on the Reversion Date and each date thereafter (subject to the provisions of Section 4.19(a)) the Company and the Restricted Subsidiaries shall be subject to (and shall be required to comply with) the Suspended Covenants.
(d) For purposes of calculating the amount available to be made as Restricted Payments under the reinstated Section 3.07 4.08(a)(v)3), calculations under that clause will be made as if Section 3.07 had been in effect since with reference to the date of the IndentureRestricted Payment, except as set forth in that no clause. Accordingly (x) Restricted Payments made during the Suspension Period that would not otherwise be permitted pursuant to any of clauses (b)(1) through (b)(14) of Section 4.08 will reduce the amount available to be made as Restricted Payments under Section 4.08(a)(v)(3); provided, however, that the amount available to be made as a Restricted Payment shall not be reduced to below zero solely as a result of such Restricted Payments but may be reduced to below zero as a result of negative cumulative Consolidated Net Income during the Suspension Period for purposes of Section 4.08(a)(v)(3)(A) and (y) the items specified in clauses (a)(v)(3)(A) through (F) of Section 4.08 that occur during the Suspension Period will increase the amount available to be made as Restricted Payments under clause (a)(v)(3) of Section 4.08. For purposes of Section 4.11, on each Reversion Date, the unutilized Excess Proceeds will be reset to zero. No Default or Event of Default will be deemed to have occurred or exist on the Reversion Date (or thereafter) under any Suspended Covenant, solely by reason as a result of, or as a result of a Restricted Payment made while that covenant was suspended. Alsothe continued existence on or after the Reversion Date of facts and circumstances arising from, any encumbrance actions taken by the Company or restriction any Restricted Subsidiaries thereof, or events occurring, or performance on or after the Reversion Date of the type referred to in Section 3.08 incurred any obligations arising from transactions which occurred, during the suspension period shall not result in a Default when such covenant is re-institutedSuspension Period.”
Appears in 1 contract
Covenant Suspension. (a) If on any date following the date hereof (i) Issue Date, the Notes are rated either Baa3 or better by Xxxxx’x and Moody’s or BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(FSection 3(a)(62) under of the Securities Exchange Act selected by the Company as a replacement agency) and (ii) no Default or Event of Default shall have has occurred and be is then continuing, thenthen upon delivery by the Company to the Trustee of an Officers’ Certificate to the foregoing effect, beginning on that day the Company and the Restricted Subsidiaries will no longer be subject to the provisions of subsection (c) below, and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder will be suspendedcovenants:
(i1) Section 3.064.7;
(ii2) Section 3.074.8;
(iii3) Section 3.084.9;
(iv4) Section 3.094.10;
(v5) Section 3.104.11;
(6) Section 4.15; and
(vi7) Section 9.01(c5.1(a)(3).
(b) . During any period that the foregoing covenants have been suspended, the Board of Directors may Company shall not designate any of its the Company’s Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted SubsidiarySection 4.16.”
(cb) Notwithstanding the foregoing, if the rating assigned to the Notes by either such rating agency both Rating Agencies should subsequently decline to below Baa3 or and BBB-, respectively, the foregoing covenants will be reinstituted reinstated as of and from the date of such rating decline, subject to further suspension in the future upon the satisfaction of the conditions described in Section 4.17(a) above. Any Debt Incurred during the period when the covenants are suspended will be classified as having been Incurred pursuant to Section 4.9(a) or one of the clauses of Section 4.9(b). To the extent such Debt would not be so permitted to be Incurred, such Debt will be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under clause (4) of Section 4.9(b). Calculations under the reinstated Section 3.07 4.7 will be made as if Section 3.07 4.7 had been in effect since the date Issue Date. However, no Default or Event of the Indenture, except that no Default will be deemed to have occurred solely with respect to the suspended covenants as a result of any actions taken by reason the Company or its Restricted Subsidiaries during the period when such covenants are suspended.
(c) Promptly following the occurrence of a Restricted Payment made while that covenant was suspended. Also, any encumbrance suspension or restriction reinstatement of the type covenants as described above, the Company shall provide an Officers’ Certificate to the Trustee regarding such occurrence. The Trustee shall have no obligation to monitor the ratings of the Notes or to independently determine or verify if a suspension or reinstatement has occurred or notify the Holders of any suspension or reinstatement and may rely conclusively on the Officers’ Certificate referred to in Section 3.08 incurred during the suspension period shall not result in immediately preceding sentence. The Trustee may provide a Default when copy of such covenant is re-institutedOfficers’ Certificate to any Holder of the Notes upon request.”
Appears in 1 contract
Samples: Indenture (Group 1 Automotive Inc)
Covenant Suspension. During any period of time (aa “Suspension Period”) If on any date following the date hereof that (i) the Notes are rated Baa3 or better ratings assigned to all Tranche A Term Loans, Tranche B Term Loans, Tranche B II Term Loans, Tranche B III Term Loans, Tranche B 2019 Term Loans, Tranche B 2016 Term Loans and Tranche B-II 2019 Term Loans by Xxxxx’x and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside both of the control of the Company, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) Rating Agencies are Investment Grade Ratings and (ii) no Default or Event of Default shall have has occurred and be is continuing, then, beginning on that day Level 3 and the Restricted Subsidiaries will not be subject to the provisions of subsection covenants set forth in Sections 6.01, 6.02, 6.03, 6.04, 6.06(i)(a), 6.07, 6.08 (cother than the first two sentences thereof), 6.09, 6.13(a)(3) belowand (4), 6.13(c)(3) and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder will be suspended:
(i4) Section 3.06;
(ii) Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c).
and clause (b) During of the first sentence of Section 6.10 (collectively, the “Suspended Covenants”). In the event that Level 3 and the Restricted Subsidiaries are not subject to the Suspended Covenants for any period that of time as a result of the foregoing covenants preceding sentence and, on any subsequent date (the “Reversion Date”), one or both of the Rating Agencies withdraws its ratings or downgrades the ratings assigned to the Loan below the required Investment Grade Ratings or a Default or Event of Default occurs and is continuing, then Level 3 and the Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants and calculations of the amount available to be made as Restricted Payments under Section 6.03 will be made as though Section 6.03 had been in effect during the entire period of time from the Measurement Date. On the Reversion Date, all Indebtedness Incurred during the Suspension Period will be classified to have been suspendedIncurred pursuant to paragraph (a) of Section 6.01 or one of the clauses set forth in paragraph (b) of Section 6.01 or paragraph (a) of Section 6.02 or one of the clauses set forth in paragraph (b) of Section 6.02 (in each case to the extent such Indebtedness would be permitted to be Incurred thereunder as of the Reversion Date and after giving effect to Indebtedness Incurred prior to the Suspension Period and outstanding on the Reversion Date). To the extent such Indebtedness would not be permitted to be Incurred pursuant to paragraph (a) of Section 6.01 or one of the clauses set forth in paragraph (b) of Section 6.01 or paragraph (a) of Section 6.02 or one of the clauses set forth in paragraph (b) of Section 6.02, such Indebtedness will be deemed to have been outstanding on the Measurement Date, so that it is classified as permitted under Section 6.01(b)(v) or Section 6.02(b)(iii). If the Incurrence of any Indebtedness by a Restricted Subsidiary during the Suspension Period would have been prohibited or conditioned upon such Restricted Subsidiary entering into a Guarantee of the Obligations and a Loan Proceeds Note Guarantee had Section 6.01 and Section 6.02 been in effect at the time of such Incurrence, such Restricted Subsidiary shall enter into a Guarantee of the Obligations and a Loan Proceeds Note Guarantee that are senior to or pari passu with such Indebtedness within ten days after the Reversion Date. For purposes of determining compliance with Section 6.07 on the Reversion Date, the Net Available Proceeds from all Asset Dispositions not applied in accordance with the covenant will be deemed to be reset to zero. Notwithstanding the foregoing, neither (a) the continued existence, after the date of such withdrawal or downgrade, of facts and circumstances or obligations that were Incurred or otherwise came into existence during a Suspension Period nor (b) the performance of any such obligations, shall constitute a breach of any covenant set forth in the Agreement or cause a Default or Event of Default thereunder; provided, however, that (1) Level 3 and its Restricted Subsidiaries did not Incur or otherwise cause such facts and circumstances or obligations to exist in anticipation of a withdrawal or downgrade below investment grade, (2) Level 3 reasonably believed that such Incurrence or actions would not result in such a withdrawal or downgrade and (3) if so required each Restricted Subsidiary shall have entered into a Guarantee of the Obligations and a Loan Proceeds Note Guarantee within the specified time period. For purposes of clauses (1) and (2) in the preceding sentence, anticipation and reasonable belief may be determined by Level 3 and shall be conclusively evidenced by a board resolution to such effect adopted in good faith by the Board of Directors of Level 3. In reaching their determination, the Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to Level 3 may, but need not, consult with the definition of “Unrestricted SubsidiaryRating Agencies.”
(c) Notwithstanding the foregoing, if the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants will be reinstituted as of and from the date of such rating decline. Calculations under the reinstated Section 3.07 will be made as if Section 3.07 had been in effect since the date of the Indenture, except that no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. Also, any encumbrance or restriction of the type referred to in Section 3.08 incurred during the suspension period shall not result in a Default when such covenant is re-instituted.”
Appears in 1 contract
Samples: Amended and Restated Credit Agreement (Level 3 Communications Inc)
Covenant Suspension. During any period of time (aa “Suspension Period”) If on any date following the date hereof that (i) the Notes are rated Baa3 or better ratings assigned to all Tranche A Term Loans and Tranche B Term Loans by Xxxxx’x and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside both of the control of the Company, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agency) Rating Agencies are Investment Grade Ratings and (ii) no Default or Event of Default shall have has occurred and be is continuing, then, beginning on that day Level 3 and the Restricted Subsidiaries will not be subject to the provisions of subsection covenants set forth in Sections 6.01, 6.02, 6.03, 6.04, 6.06(i)(a), 6.07, 6.08 (cother than the first two sentences thereof), 6.09, 6.13(a)(3) belowand (4), 6.13(c)(3) and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder will be suspended:
(i4) Section 3.06;
(ii) Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c).
and clause (b) During of the first sentence of Section 6.10 (collectively, the “Suspended Covenants”). In the event that Level 3 and the Restricted Subsidiaries are not subject to the Suspended Covenants for any period that of time as a result of the foregoing covenants preceding sentence and, on any subsequent date (the “Reversion Date”), one or both of the Rating Agencies withdraws its ratings or downgrades the ratings assigned to the Loan below the required Investment Grade Ratings or a Default or Event of Default occurs and is continuing, then Level 3 and the Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants and calculations of the amount available to be made as Restricted Payments under Section 6.03 will be made as though Section 6.03 had been in effect during the entire period of time from the Measurement Date. On the Reversion Date, all Indebtedness Incurred during the Suspension Period will be classified to have been suspendedIncurred pursuant to paragraph (a) of Section 6.01 or one of the clauses set forth in paragraph (b) of Section 6.01 or paragraph (a) of Section 6.02 or one of the clauses set forth in paragraph (b) of Section 6.02 (in each case to the extent such Indebtedness would be permitted to be Incurred thereunder as of the Reversion Date and after giving effect to Indebtedness Incurred prior to the Suspension Period and outstanding on the Reversion Date). To the extent such Indebtedness would not be permitted to be Incurred pursuant to paragraph (a) of Section 6.01 or one of the clauses set forth in paragraph (b) of Section 6.01 or paragraph (a) of Section 6.02 or one of the clauses set forth in paragraph (b) of Section 6.02, such Indebtedness will be deemed to have been outstanding on the Measurement Date, so that it is classified as permitted under Section 6.01(b)(v) or Section 6.02(b)(iii). If the Incurrence of any Indebtedness by a Restricted Subsidiary during the Suspension Period would have been prohibited or conditioned upon such Restricted Subsidiary entering into a Guarantee of the Obligations and a Loan Proceeds Note Guarantee had Section 6.01 and Section 6.02 been in effect at the time of such Incurrence, such Restricted Subsidiary shall enter into a Guarantee of the Obligations and a Loan Proceeds Note Guarantee that are senior to or pari passu with such Indebtedness within ten days after the Reversion Date. For purposes of determining compliance with Section 6.07 on the Reversion Date, the Net Available Proceeds from all Asset Dispositions not applied in accordance with the covenant will be deemed to be reset to zero. Notwithstanding the foregoing, neither (a) the continued existence, after the date of such withdrawal or downgrade, of facts and circumstances or obligations that were Incurred or otherwise came into existence during a Suspension Period nor (b) the performance of any such obligations, shall constitute a breach of any covenant set forth in the Agreement or cause a Default or Event of Default thereunder; provided, however, that (1) Level 3 and its Restricted Subsidiaries did not Incur or otherwise cause such facts and circumstances or obligations to exist in anticipation of a withdrawal or downgrade below investment grade, (2) Level 3 reasonably believed that such Incurrence or actions would not result in such a withdrawal or downgrade and (3) if so required each Restricted Subsidiary shall have entered into a Guarantee of the Obligations and a Loan Proceeds Note Guarantee within the specified time period. For purposes of clauses (1) and (2) in the preceding sentence, anticipation and reasonable belief may be determined by Level 3 and shall be conclusively evidenced by a board resolution to such effect adopted in good faith by the Board of Directors of Level 3. In reaching their determination, the Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to Level 3 may, but need not, consult with the definition of “Unrestricted SubsidiaryRating Agencies.”
(c) Notwithstanding the foregoing, if the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants will be reinstituted as of and from the date of such rating decline. Calculations under the reinstated Section 3.07 will be made as if Section 3.07 had been in effect since the date of the Indenture, except that no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. Also, any encumbrance or restriction of the type referred to in Section 3.08 incurred during the suspension period shall not result in a Default when such covenant is re-instituted.”
Appears in 1 contract
Covenant Suspension. (a) If Beginning on any date following the date hereof (the “Suspension Date”) that (i) the Notes are rated Baa3 have been assigned an Investment Grade Rating from one of the two Rating Agencies and a rating from the other Rating Agency of at least Ba1 in the case of Xxxxx’x or better by Xxxxx’x and BBB- or better by BB+ in the case of S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit or a comparable rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act selected by the Company as a replacement agencySuccessor Rating Agency) and (ii) no Default or Event of Default shall have has occurred and is continuing under the Indenture, and ending on the date (the “Reversion Date”) that either Rating Agency (or both Rating Agencies) downgrades the rating assigned by it to the Notes below the Investment Grade Rating or other specified rating, as applicable, or a Default or Event of Default has occurred and is continuing (such period of time from and including the Suspension Date to but excluding the Reversion Date, the “Suspension Period”), the Company and its Restricted Subsidiaries will not be continuing, then, beginning on that day and subject to the following provisions of subsection (c) below, and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder will be suspendedIndenture:
(i1) Section 3.064.03;
(ii2) Section 3.074.04;
(iii3) Section 3.084.05;
(iv4) Section 3.094.11;
(v5) Section 3.104.14;
(6) Section 4.15; and
(vi7) Section 9.01(c5.01(a)(2) (collectively, the “Suspended Covenants”).
(b) In addition, the Company may elect to suspend the Note Guarantees of any Subsidiary Guarantors.
(c) Notwithstanding the foregoing, the Company and the Restricted Subsidiaries will remain subject to the following provisions of the Indenture:
(1) Section 4.09;
(2) Section 4.13;
(3) Section 4.16;
(4) Section 4.17; and
(5) Section 5.01 (except to the extent set forth in Section 4.18(a)(7)).
(d) During any period that the foregoing covenants have been suspendedSuspension Period, the Company’s Board of Directors may not designate any of its the Company’s Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted SubsidiarySubsidiaries.”
(ce) Notwithstanding On the foregoingReversion Date, if all Indebtedness Incurred and Disqualified Capital Stock and Preferred Stock issued during the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants Suspension Period will be reinstituted deemed to have been outstanding on the Issue Date, so that it is classified as permitted under Section 4.03(b)(2).
(f) Calculations made after the Reversion Date of and from the date of such rating decline. Calculations amount available to be made as Restricted Payments under the reinstated Section 3.07 4.04 will be made as if though Section 3.07 4.04 had been in effect since the date Issue Date and throughout the Suspension Period. Accordingly, Restricted Payments made during the Suspension Period will reduce the amount available to be made as Restricted Payments under Section 4.04(a). For purposes of Section 4.05, on the Suspension Date, the Net Cash Proceeds amount will be reset to zero. Notwithstanding the reinstatement of the IndentureSuspended Covenants on the Reversion Date, except neither (a) the continued existence, on and after the Reversion Date, of facts and circumstances or obligations that no occurred, were Incurred or otherwise came into existence during a Suspension Period nor (b) the performance thereof, shall constitute a breach of any Suspended Covenant set forth in the Indenture or cause a Default will be deemed or Event of Default thereunder; provided, however, that (i) the Company and the Restricted Subsidiaries did not Incur or otherwise cause such facts and circumstances or obligations to have occurred solely by reason exist in anticipation of a Restricted Payment made while withdrawal or downgrade by either Rating Agency (or both Rating Agencies) of its Investment Grade Rating on the Notes and (ii) the Company reasonably believed that covenant was suspended. Also, any encumbrance such Incurrence or restriction of the type referred to in Section 3.08 incurred during the suspension period shall actions would not result in a Default when such covenant is re-institutedwithdrawal or downgrade.”
Appears in 1 contract
Samples: Indenture (Dana Holding Corp)
Covenant Suspension. (a) If on any date following the date hereof Issue Date:
(i1) the Notes are rated both at least Baa3 or better (stable) by Xxxxx’x Moody’s and BBB- or better at least BBB-(stable) by S&P Standard & Poor’s (or, if either such entity ceases to rate the Notes for reasons outside of the control of the CompanyIssuer, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(FSection 3(a)(62) under the Securities Exchange Act Act, selected by the Company Issuer as a replacement agency) and ); and
(ii2) no Default or Event of Default shall have occurred and be continuing, (the occurrence of the events described in the foregoing clauses (1) and (2) being collectively referred to as a “Covenant Suspension Event”), then, beginning on that day (the “Suspension Date”) and subject to the provisions of subsection (c) belowthe following paragraph, the Company and notwithstanding anything in this Article 3 the Restricted Subsidiaries shall not be subject to the contraryfollowing provisions of this Indenture: Sections 4.7, 4.8, 4.9, 4.10, 4.11 and 4.18, clause (y) of the following covenants hereunder will be suspended:
(i) second paragraph of Section 3.06;
(ii) Section 3.07;
4.19 and clause (iii) of the first paragraph of Section 3.08;
5.1 (iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(cthe “Suspended Covenants”).
(b) During any period that the foregoing covenants have been suspended, the Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted Subsidiary.”
(c) Notwithstanding the foregoing, if the rating assigned by either such rating agency should subsequently decline and the Notes are not rated both at least Baa3 (stable) by Moody’s and at least BBB-(stable) by Standard & Poor’s (or if either such agency ceases to below Baa3 or BBB-, respectivelyrate the Notes, the foregoing covenants will equivalent investment grade credit rating from another nationally recognized statistical rating organization), then the Suspended Covenants shall be reinstituted reinstated as of and from the date of such rating declinedecline (the “Reversion Date”). Notwithstanding that the suspended covenants may be reinstated, no Default shall be deemed to have occurred as a result of a failure to comply with such suspended covenants during any period such covenants have been suspended.
(c) The period of time between the Suspension Date and the Reversion Date is referred to as the “Suspension Period.” Calculations under the reinstated Section 3.07 will 4.7 shall be made as if Section 3.07 such section had been in effect since the date Issue Date. Accordingly, Restricted Payments made during the Suspension Period shall reduce the amount available to be made as Restricted Payments under clause (A) of the IndentureSection 4.7, except that no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant section was suspended. AlsoOn each Reversion Date, any encumbrance or restriction all Debt Incurred during the Suspension Period shall be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under clause (iii) of the type referred definition of Permitted Debt.
(d) During any period that the foregoing covenants have been suspended, the Issuer’s Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to in Section 3.08 incurred during 4.19.
(e) The Issuer shall deliver an Officers’ Certificate to the suspension period Trustee specifying (i) if a Suspension Period has commenced or ended, (ii) the dates of such commencement or ending and (iii) other relevant matters. The Trustee shall have no duty to monitor whether or not result in any covenants have been suspended or, if a Default when such covenant is re-institutedSuspension Period has commenced or ended, nor does it have any duty to notify the noteholders of any of the preceding.”
Appears in 1 contract
Samples: Indenture (American Woodmark Corp)
Covenant Suspension. (a) If on any date following the date hereof of this Indenture (i) the Notes are rated Baa3 or better by Xxxxx’x Mxxxx’x and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(FSection 3(a) under (62) of the Securities Exchange Act selected by the Company as a replacement agency) ); and (ii) no Default or Event of Default shall have occurred and be continuing, then, beginning on that day upon the Company’s delivery of notice of such events to the Trustee, Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.16 and subject 5.01(a)(4) of this Indenture will be suspended and no Default or Event of Default shall result from any failure to comply with any of the provisions of subsection (c) below, and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder will be suspended:
(i) Section 3.06;
(ii) Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c)such Sections.
(b) During any period that the foregoing covenants Sections listed in Section 4.17(a) have been suspended, the Company’s Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted SubsidiarySection 4.16 hereof.”
(c) Notwithstanding the foregoing, if the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants will be reinstituted as of and from the date of such rating decline. Calculations under the reinstated Section 3.07 4.07 hereof will be made as if Section 3.07 4.07 had been in effect since the date of the Indenture, this Indenture except that no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. Also, any encumbrance .
(d) The Trustee will have no obligation to (i) independently determine or restriction verify if the conditions for the suspension or reinstitution of the type referred covenants pursuant to in this Section 3.08 incurred during 4.17 have occurred or (ii) notify the Holders of Notes of the occurrence of such suspension period shall not result in a Default when such covenant is re-institutedor reinstitution.”
Appears in 1 contract
Samples: Indenture (Viper Energy Partners LP)
Covenant Suspension. (a) If on Notwithstanding any date provision of this Indenture or of the Notes to the contrary, if at any time following the date hereof of this Indenture (ia) the Notes are rated Baa3 or better by Xxxxx’x and BBB- or better by S&P (or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating from any other “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(FSection 3(a)(62) under of the Securities Exchange Act selected by the Company as a replacement agency) ); and (iib) no Default or Event of Default shall have occurred and be continuing, then, beginning on that day upon the Company’s delivery of notice of such events to the Trustee, Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.18 and subject 5.01(a)(4) of this Indenture will be suspended and no Default or Event of Default shall result from any failure to comply with any of the provisions of subsection (c) below, and notwithstanding anything in this Article 3 to the contrary, the following covenants hereunder will be suspended:
(i) Section 3.06;
(ii) Section 3.07;
(iii) Section 3.08;
(iv) Section 3.09;
(v) Section 3.10; and
(vi) Section 9.01(c)such Sections.
(b) During any period that the foregoing covenants Sections have been suspended, the Company’s Board of Directors may not designate any of its Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted SubsidiarySection 4.18 hereof.”
(c) Notwithstanding the foregoing, if the rating assigned by either such rating agency should subsequently decline to below Baa3 or BBB-, respectively, the foregoing covenants will be reinstituted as of and from the date of such rating decline. Calculations under the reinstated Section 3.07 4.07 hereof will be made as if Section 3.07 4.07 had been in effect since the date of the Indenture, this Indenture except that no Default will be deemed to have occurred solely by reason of a Restricted Payment made while that covenant was suspended. Also, any encumbrance or restriction of the type referred to in Section 3.08 incurred during the suspension period shall not result in a Default when such covenant is re-instituted.”
Appears in 1 contract
Samples: Indenture (Diamondback Energy, Inc.)