Incurrence of Indebtedness and Issuance of Disqualified Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company or any Restricted Subsidiary may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock or preferred stock, if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or such preferred stock is issued, as the case may be, would have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock or the preferred stock had been issued, as the case may be, at the beginning of such four-quarter period; provided, further, that the aggregate principal amount of Indebtedness incurred by Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to this paragraph shall not exceed $10.0 million.
Appears in 4 contracts
Samples: Senior Notes Indenture (AdaptHealth Corp.), Senior Notes Indenture (AdaptHealth Corp.), Senior Notes Indenture (AdaptHealth Corp.)
Incurrence of Indebtedness and Issuance of Disqualified Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), Indebtedness) and that the Company will not issue any Disqualified Stock not, and will not permit any of its Restricted Subsidiaries to issue any shares of Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue preferred stock; provided, however, that the Company or and any Restricted Subsidiary may incur Indebtedness (including Acquired DebtIndebtedness) or issue shares of Disqualified Stock or preferred stockStock, and any Restricted Subsidiary may incur Acquired Indebtedness, if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or such preferred stock is issued, as the case may be, issued would have been at least 2.0 1.5 to 1.01, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred incurred, or the Disqualified Stock or the preferred stock had been issued, as the case may be, at the beginning of such four-quarter period. The provisions of the first paragraph of this covenant will not apply to the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):
(i) Indebtedness of the Company under the Designated Senior Indebtedness with respect thereto in an aggregate principal amount outstanding at any time not to exceed the sum of (1) $40.0 million, (2) the difference between (A) $25.0 million less (B) the amount of then outstanding FF&E Financing incurred pursuant to clause (iv) below, less the aggregate amount of all proceeds from all Asset Sales that have been applied since the Issue Date to permanently reduce the outstanding amount of such Indebtedness pursuant to Section, (3) interest, fees, expenses, obligations owed pursuant to any Hedging Obligations incurred with respect to the New Credit Facility and related costs, and (4) $200.0 million with respect to the Second Lien Notes;
(ii) the incurrence by the Company of Existing Indebtedness;
(iii) the incurrence by the Company of Indebtedness represented by the Notes, including any Notes issued to pay interest accrued on the Notes;
(iv) the incurrence by the Company or its Restricted Subsidiaries of FF&E Financing in an aggregate principal amount not to exceed $25.0 million at any time outstanding;
(v) the incurrence by the Company or its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred pursuant to the first paragraph of this Section 9(b) and subsections (i) and (iii) above;
(vi) the incurrence by the Company or its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and its Restricted Subsidiaries, provided, however, that (i) if the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes and (ii) (A) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or its Restricted Subsidiaries and (B) any sale or other transfer of any such Indebtedness to a Person that is not the Company or a Restricted Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary;
(vii) the incurrence by the Company or its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing, managing or hedging interest rate risk with respect to any fixed, floating or variable rate Indebtedness or for the purpose of protecting against fluctuation in interest rates or the value of foreign currencies purchased or received, in each case in respect of Indebtedness that is permitted by the terms of the Notes to be outstanding; provided, furtherhowever, that in the case of Hedging Obligations that are incurred for the purpose of fixing, managing or hedging interest rate risks with respect to Indebtedness, the notional principal amount of any such Hedging Obligation does not exceed the principal amount of the Indebtedness to which such Hedging Obligation relates and in the case of Hedging Obligations incurred for the purpose of protecting against fluctuations in interest rates or the value of foreign currencies purchased or received, such Hedging Obligations do not increase the Indebtedness of the Company and its Restricted Subsidiaries outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder;
(viii) Indebtedness incurred solely in respect of performance, surety and similar bonds or completion guarantees, to the extent that such incurrence does not result in the incurrence of any obligation for the payment of borrowed money to others;
(ix) Indebtedness arising in the ordinary course of business out of workers compensation claims, self insurance obligations and standby letters of credit covering workers compensation, performance or similar obligations, all in the ordinary course of business in accordance with customary industry practices, in amounts and for the purposes customary in the Company’s industry;
(x) any guarantee of the Company of Indebtedness or other obligations of any of its Restricted Subsidiaries so long as the incurrence of such Indebtedness incurred by such Restricted Subsidiary is permitted under the terms of the Notes;
(xi) the incurrence by the Company of Indebtedness represented by the Notes and the accrued and unpaid interest thereon; and
(xii) the incurrence by the Company of additional Indebtedness in an aggregate principal amount of Indebtedness incurred by Restricted Subsidiaries that are (or accreted value, as applicable) at any time outstanding not Subsidiary Guarantors pursuant to this paragraph shall not exceed $10.0 million. For purposes of determining compliance with this covenant, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xii) above or is entitled to be incurred pursuant to the first paragraph of this Section 9(b), the Company shall, in its sole discretion, classify and reclassify such item of Indebtedness in any manner that complies with this Section 9(b) and such item of Indebtedness will be treated as having been incurred pursuant to only one of such clauses or pursuant to the first paragraph of this Section 9(b). Accrual of interest, the accretion of accreted value and the payment of interest in the form of additional Indebtedness will not be deemed to be an incurrence of Indebtedness for purposes of this covenant.
Appears in 1 contract
Samples: Note (Hard Rock Hotel Inc)
Incurrence of Indebtedness and Issuance of Disqualified Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur” or an “incurrence”) any Indebtedness (including including, without limitation, any Acquired Debt), Indebtedness) and that the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company or any Guarantor may incur Indebtedness or issue Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock or preferred stockIndebtedness, in each case if the Fixed Charge Consolidated Interest Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or such preferred stock is issued, as the case may be, issued would have been at least 2.0 3.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness or Disqualified Stock had been incurred issued or the Disqualified Stock or the preferred stock had been issuedincurred, as the case may be, at the beginning of such four-quarter period. The foregoing provisions shall not apply to the incurrence by the Company or any of its Restricted Subsidiaries of any of the following Indebtedness:
(a) Indebtedness under Credit Facilities in an aggregate principal amount at any one time outstanding not to exceed the greater of (x) €125,000,000, plus any fees, premiums, expenses (including costs of collection), indemnities and similar amounts payable in connection with such Indebtedness, and less any amounts derived from Asset Sales and applied to the permanent reduction of Indebtedness under Credit Facilities in accordance with Section 4.10 hereof and (y) 10% of the Company’s Consolidated Total Assets;
(b) Existing Indebtedness;
(c) Hedging Obligations;
(d) Indebtedness represented by the Original Notes or the Subsidiary Guarantees;
(e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries, provided that (1) if the Company or any Guarantor is the obligor on such Indebtedness, then the Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all of the Company’s obligations with respect to the Notes or such Guarantor’s obligations under its Subsidiary Guarantee, as the case may be, and (2) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Wholly Owned Restricted Subsidiary of the Company, or any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Wholly Owned Restricted Subsidiary of the Company, shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, as of the date of such issuance, sale or other transfer that is not permitted by this clause (e);
(f) Indebtedness in respect of bid, performance or surety bonds issued for the account of the Company or any Restricted Subsidiary thereof in the ordinary course of business, including guarantees or obligations of the Company or any Restricted Subsidiary thereof with respect to letters of credit supporting such bid, performance or surety obligations (in each case other than for an obligation for money borrowed);
(g) Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations (or any guarantee thereof or indemnity with respect thereto), in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or any of its Restricted Subsidiaries, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (g), not to exceed €20,000,000 at any time outstanding;
(h) the guarantee by the Company of Indebtedness of any of its Restricted Subsidiaries or by any Restricted Subsidiary of Indebtedness of the Company or another Restricted Subsidiary, in each case, that was permitted to be incurred by another provision of this Section 4.09; provided that if the Indebtedness being guaranteed is subordinated in right of payment to the Notes or a Subsidiary Guarantee then the guarantee shall be subordinated to the same extent as the Indebtedness guaranteed;
(i) intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries incurred in the ordinary course of business in connection with cash pooling or other cash management arrangements;
(j) Permitted Refinancing Indebtedness incurred in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund Indebtedness incurred pursuant to the first paragraph and clauses (b), (d), (g) and (j) of the second paragraph of this Section 4.09;
(k) Indebtedness of Restricted Subsidiaries of the Company (other than Guarantors) in an aggregate principal amount not to exceed 5% of the Company’s Consolidated Total Assets minus the sum of all Indebtedness of Restricted Subsidiaries of the Company (other than Guarantors) then outstanding; and
(l) any additional Indebtedness of the Company or any Guarantor in an aggregate principal amount not in excess of €25,000,000 at any one time outstanding and any guarantee thereof. The Company shall not, and shall not permit any Guarantor to, directly or indirectly, incur any Indebtedness which by its terms (or by the terms of any agreement governing such Indebtedness) is subordinated to any other Indebtedness of the Company or of such Guarantor, as the case may be, unless such Indebtedness is also by its terms (or by the terms of any agreement governing such Indebtedness) made expressly subordinate to the Notes or the Subsidiary Guarantees of such Guarantor, as the case may be, to the same extent and in the same manner as such Indebtedness is subordinated pursuant to subordination provisions that are most favorable to the holders of any other Indebtedness of the Company or of such Guarantor, as the case may be; provided, furtherhowever, that no Indebtedness shall be deemed to be contractually subordinated in right of payment to any other Indebtedness solely by virtue of being unsecured. For purposes of determining compliance with this Section 4.09, in the aggregate principal amount event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (l) of the second paragraph, or is entitled to be incurred by Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to the first paragraph, of this paragraph Section 4.09, the Company shall not exceed $10.0 millionbe permitted to classify such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.09.
Appears in 1 contract
Samples: Indenture (CGG Veritas)
Incurrence of Indebtedness and Issuance of Disqualified Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “"incur”") any Indebtedness (including Acquired Debt), ) and the Company will shall not issue any Disqualified Stock and will shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company or and any of its Restricted Subsidiary Subsidiaries that are Guarantors may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock or preferred stock, if if:
(i) the Fixed Charge Coverage Ratio for the Company’s 's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or such preferred stock is issued, as the case may be, issued would have been at least 2.0 2.5 to 1.01, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), ) as if set forth in the definition of Fixed Charge Coverage Ratio; and
(ii) no Default or Event of Default shall have occurred and be continuing at the time such additional Indebtedness is incurred or such Disqualified Stock is issued or would occur as a consequence of the incurrence of the additional Indebtedness had been incurred or the issuance of the Disqualified Stock or the preferred stock had been issued, as the case may be, at the beginning of such four-quarter period; provided, further, that the aggregate principal amount of Indebtedness incurred by Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to this paragraph shall not exceed $10.0 millionStock.
Appears in 1 contract
Samples: Indenture (Forcenergy Inc)
Incurrence of Indebtedness and Issuance of Disqualified Stock. (aA) The Company will Corporation shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Debt), Indebtedness) and the Company Corporation will not issue any shares of Disqualified Stock and will not permit any of its Restricted Subsidiaries Subsidiary to issue any shares of Disqualified Stock or preferred stock; provided, however, that that
(1) the Company or any Restricted Subsidiary Corporation may incur Indebtedness (including Acquired DebtIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary of the Corporation other than SMC and any of its Restricted Subsidiaries may incur Indebtedness (including Acquired Indebtedness), issue shares of Disqualified Stock or and issue shares of preferred stock, stock if the Fixed Charge Coverage Ratio of the Corporation for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or such preferred stock is issued, as the case may be, issued would have been at least 2.0 2.00 to 1.01.00, and
(2) SMC and any of its Restricted Subsidiaries may incur Indebtedness (including Acquired Indebtedness) or issue Disqualified Stock or preferred stock if the Fixed Charge Coverage Ratio of SMC for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or preferred stock is issued would have been at least 2.00 to 1.00, in each case determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock or the preferred stock had been issued, as the case may be, and the application of proceeds therefrom had occurred at the beginning of such four-quarter period; provided.
(B) The limitations in paragraph (A) above shall not apply to:
(1) the incurrence of Indebtedness under Credit Facilities (other than the Senior Unsecured Term Loan) by the Corporation, furtherSMC or any of their Restricted Subsidiaries and the issuance and creation of letters of credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the face amount thereof), that the up to an aggregate principal amount of $900.0 million outstanding at any one time;
(2) the incurrence of the Senior Unsecured Term Loan, up to an aggregate principal amount of $100.0 million outstanding at any one time, by the Corporation, SMC or any of their Restricted Subsidiaries;
(3) Existing Indebtedness (including Indebtedness represented by the Notes) (other than Indebtedness described in clauses (1) and (2) above);
(4) Indebtedness (including Capitalized Lease Obligations), Disqualified Stock and preferred stock incurred by the Corporation, SMC or any of their Restricted Subsidiaries, to finance the purchase, lease or improvement of property (real or personal) or equipment that is used or useful in a Similar Business, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets, in an aggregate principal amount which, when aggregated with the principal amount of all other Indebtedness, Disqualified Stock and preferred stock then outstanding and incurred pursuant to this clause (4) and including all Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness, Disqualified Stock and preferred stock incurred pursuant to this clause (4), does not exceed the greater of (x) $100.0 million and (y) 10.0% of Total Assets.
(5) Indebtedness incurred by the Corporation, SMC or any of their Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including without limitation letters of credit in respect of workers’ compensation claims, or other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims; provided, however, that upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;
(6) Indebtedness arising from agreements of the Corporation, SMC or any of their Restricted Subsidiaries providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; provided, however, that
(a) such Indebtedness is not reflected on the balance sheet of the Corporation, SMC or any of their Restricted Subsidiaries (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet shall not be deemed to be reflected on such balance sheet for purposes of this clause (6)(a)) and
(b) the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including non-cash proceeds (the fair market value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Corporation, SMC or any of their Restricted Subsidiaries in connection with such disposition;
(7) Indebtedness of the Corporation owed to and held by SMC or any other of its Restricted Subsidiaries or Indebtedness of SMC or any other Restricted Subsidiary Guarantors owed to and held by the Corporation, SMC or any other Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such Indebtedness (except to the Corporation, SMC or any Restricted Subsidiary) shall be deemed, in each case to be an incurrence of such Indebtedness by the issuer thereof;
(8) shares of preferred stock of a Restricted Subsidiary issued to the Corporation, SMC or any other Restricted Subsidiary; provided that any subsequent issuance or transfer of any Capital Stock or any other event which results in SMC or any such Restricted Subsidiary ceasing to be a Restricted Subsidiary of the Corporation or any other subsequent transfer of any such shares of preferred stock (except to the Corporation, SMC or any Restricted Subsidiary) shall be deemed in each case to be an issuance of such shares of preferred stock;
(9) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes) for the purpose of limiting:
(a) interest rate risk with respect to any Permitted Indebtedness; or
(b) exchange rate risk with respect to any currency exchange; or
(c) commodity risk;
(10) obligations in respect of performance, bid, appeal and surety bonds and completion guarantees provided by the Corporation, SMC or any of their Restricted Subsidiaries or obligations in respect of letters of credit related thereto, in each case in the ordinary course of business;
(11) Indebtedness, Disqualified Stock and preferred stock of the Corporation, SMC or any of their Restricted Subsidiaries not otherwise permitted hereunder in an aggregate principal amount or liquidation preference, which when aggregated with the principal amount and liquidation preference of all other Indebtedness, Disqualified Stock and preferred stock then outstanding and incurred pursuant to this paragraph shall clause (11), does not at any one time outstanding exceed $10.0 million.the sum of:
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Disqualified Stock. (a) The Company will Partnership shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and the Company will Partnership shall not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stockPreferred Stock; provided, however, that if no Default or Event of Default shall have occurred and be continuing at the Company time or any Restricted Subsidiary as a consequence of the incurrence of this Indebtedness, the Partnership may incur Indebtedness (including Acquired Debt) or the Partnership may issue shares of Disqualified Stock or preferred stockStock, if (x) the Fixed Charge Coverage Ratio for the CompanyPartnership’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such that additional Indebtedness is incurred or such Disqualified Stock or such preferred stock is issued, as the case may beincurred, would have been at least 2.0 to 1.01, determined on a pro pro-forma basis (including a pro pro-forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock or the preferred stock had been issued, as the case may be, at the beginning of such the four-quarter periodperiod and (y) no Default or Event of Default shall have occurred and be continuing at the time of or would occur after giving pro forma effect to such incurrence or issuance and the application of proceeds therefrom. The first paragraph of this Section 4.09 shall not prohibit the incurrence of any of the following (collectively, “Permitted Debt”):
(a) Indebtedness represented by the Notes to be issued on the date of this Indenture and any PIK Notes issued from time to time to pay PIK Interest in accordance with the terms of this Indenture, and (b) the respective obligations of the Partnership and its Restricted Subsidiaries arising under the Collateral Documents to the extent such obligations would represent Indebtedness;
(2) Indebtedness incurred pursuant to one or more Credit Facilities in an amount outstanding at any time not to exceed $80.0 million less any permanent reductions made pursuant to the definition of “Net Proceeds” in connection with any Asset Sale or otherwise Section 4.10 hereof;
(3) Existing Indebtedness;
(4) Permitted Refinancing Indebtedness;
(5) so long as at the time of incurrence no Event of Default has occurred and is continuing, Indebtedness in one or more FF&E Financings and Capitalized Lease Obligations to acquire or refinance furniture, fixtures or equipment incident to and useful in the Gaming Business, in an aggregate principal amount not to exceed $5.0 million outstanding at any time;
(6) intercompany Indebtedness between or among the Partnership and any of its Restricted Subsidiaries as provided in Section 4.19 hereof; provided, furtherhowever, that:
(1) if the Partnership or any Subsidiary Guarantor is the obligor on that Indebtedness, the obligation to pay principal, interest or other amounts under such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of the Partnership, or the Subsidiary Guarantee, in the case of a Subsidiary Guarantor; and
(2) (A) any subsequent issuance or transfer of Equity Interests that results in any Indebtedness being held by a Person other than the Partnership or a Restricted Subsidiary and (B) any sale or other transfer of any Indebtedness to a Person other than the Partnership or a Restricted Subsidiary, shall be deemed, in each case, to constitute an incurrence of Indebtedness by the Partnership or the Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);
(7) Hedging Obligations of the aggregate principal amount Partnership or any of Indebtedness incurred by its Restricted Subsidiaries that are incurred for the purpose of fixing, managing or hedging interest rate risk with respect to any Indebtedness that is permitted by the terms of this Indenture to be outstanding; provided, however, that, in each case, the Hedging Obligations are not incurred for speculative purposes;
(8) to the extent that such incurrence does not result in the incurrence by the Partnership or any Restricted Subsidiary Guarantors pursuant of any obligation for the payment of borrowed money of others, Indebtedness incurred solely as a result of the execution by the Partnership or its Restricted Subsidiaries of letters of credit relating to this paragraph workers compensation or self insurance, performance and surety bonds or similar instruments; provided, however, that the foregoing exception shall not exceed $10.0 millionbe applicable to Indebtedness incurred in connection with the performance by the Partnership or its Restricted Subsidiaries of such bonds or instruments or payment of such letter of credit;
(9) the Indebtedness represented by a Subsidiary Guarantee; and
(10) the Partner Subordinated Notes. The Partnership shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Partnership unless such Indebtedness is also contractually subordinated in right of payment to the Notes on substantially identical terms; provided, however, that no Indebtedness of the Partnership shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Partnership solely by virtue of being unsecured. For purposes of determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (10) above, or is entitled to be incurred under the first paragraph of this Section 4.09, the Partnership shall be permitted to classify the item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of the item of Indebtedness, in any manner that complies with this Section 4.09.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Disqualified Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company or any Restricted Subsidiary may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock or preferred stock, if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or such preferred stock is issued, as the case may be, would have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock or the preferred stock had been issued, as the case may be, at the beginning of such four-quarter period; provided, further, that the aggregate principal amount of Indebtedness incurred by Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to this paragraph shall not exceed $10.0 million.
(b) Section 4.09(a) of this Indenture will not prohibit the incurrence of any of the following items of Indebtedness or the issuance of any of the following items of Disqualified Stock or preferred stock (collectively, “Permitted Debt”):
(1) the incurrence by the Company and/or any Subsidiary Guarantor (and the Subsidiary Guarantee thereof by the Subsidiary Guarantors) of Indebtedness under the Credit Agreement and other Debt Facilities entered into after the Issue Date in an aggregate principal amount at any one time outstanding under this clause (1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed (except as permitted by the definition of “Permitted Refinancing Indebtedness”) the sum of (i) $1.25 billion and (ii) any additional amount so long as, in the case of this subclause (ii), after giving effect thereto the Secured Net Leverage Ratio (treating all incurred Indebtedness under this clause (1) as secured by Liens on the assets of the Company) would not exceed 3.00 to 1.00;
(2) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness, including the Existing Notes and the related Guarantees;
(3) the incurrence by the Company and the Subsidiary Guarantors of Indebtedness represented by the Notes and the related Subsidiary Guarantees;
(4) the incurrence or issuance by the Company or any of its Restricted Subsidiaries of Indebtedness (including Capital Lease Obligations), Disqualified Stock or preferred stock, in each case, incurred or issued for the purpose of financing all or any part of the purchase price or cost of design, construction, lease, installation or improvement of any fixed or capital assets and any Indebtedness assumed by the Company or any of its Restricted Subsidiaries in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, in an aggregate principal amount, including all Permitted Refinancing Indebtedness (except as permitted by the definition of “Permitted Refinancing Indebtedness”) and Replacement Preferred Stock (except as permitted by the definition of “Replacement Preferred Stock”) incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (4), not to exceed the greater of (a) $30.0 million and (b) 2.5% of Total Assets and at any time outstanding;
(5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness or Replacement Preferred Stock in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) or any Disqualified Stock or preferred stock that was permitted by this Indenture to be incurred under Section 4.09(a) of this Indenture or clauses (2), (3), (4), (5), (13), (15) or (18) of this Section 4.09(b);
(6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that:
(A) if the Company or any Subsidiary Guarantor is the obligor on such Indebtedness and the payee is not the Company or a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of the Company or the Subsidiary Guarantee, in the case of a Subsidiary Guarantor, except to the extent such subordination would violate any applicable law, rule or regulation; and
(B) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary of the Company, will be deemed, in each case, to constitute a new incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, which new incurrence is not permitted by this clause (6);
(7) the issuance by any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of shares of preferred stock; provided, however, that:
(A) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Company or a Restricted Subsidiary of the Company; and
(B) any sale or other transfer of any such preferred stock to a Person that is not either the Company or a Restricted Subsidiary of the Company, will be deemed, in each case, to constitute a new issuance of such preferred stock by such Restricted Subsidiary which new issuance is not permitted by this clause (7);
(8) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business and not for speculative purposes;
(9) the guarantee:
(A) by the Company or any of the Subsidiary Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Section 4.09; provided that if the Indebtedness being guaranteed is subordinated to the Notes, then the guarantee shall be subordinated to the same extent as the Indebtedness guaranteed; and
(B) by any Non-Guarantor Subsidiary of Indebtedness of a Non-Guarantor Subsidiary;
(10) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, letters of credit, performance bonds, surety bonds, appeal bonds or other similar bonds in the ordinary course of business; provided, however, that upon the drawing of letters of credit for reimbursement obligations, including with respect to workers’ compensation claims, or the incurrence of other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;
(11) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, so long as such Indebtedness is extinguished within five Business Days;
(12) the incurrence of Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for indemnification, adjustment of purchase price, holdback, contingency payment obligations or similar obligations, in each case, incurred or assumed in connection with the disposition or acquisition of any business, assets or Capital Stock of the Company or any Restricted Subsidiary;
(13) the incurrence of Indebtedness or the issuance of any Disqualified Stock or preferred stock by any Non-Guarantor Subsidiary in an aggregate principal amount, including all Permitted Refinancing Indebtedness (except as permitted by the definition of “Permitted Refinancing Indebtedness”) and Replacement Preferred Stock (except as permitted by the definition of “Replacement Preferred Stock”) incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (13), not to exceed $20.0 million at any time outstanding;
(14) the incurrence of Indebtedness resulting from endorsements of negotiable instruments for collection in the ordinary course of business;
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Disqualified Stock. (a) The Company will Enterprise shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”"INCUR") any Indebtedness (including Acquired Debt), and the Company will Enterprise and its Subsidiaries shall not issue any Disqualified Stock and will shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stockequity; providedPROVIDED, howeverHOWEVER, that if no Default or Event of Default shall have occurred and be continuing at the Company time or any Restricted Subsidiary as a consequence of the incurrence of this Indebtedness, the Enterprise may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock or preferred stockStock, if the Fixed Charge Coverage Ratio for the Company’s Enterprise's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or such preferred stock is issued, as the case may beincurred, would have been at least 2.0 2.5 to 1.01 if such Indebtedness is incurred prior to December 31, 2003 and 3.0 to 1 thereafter, in each case determined on a pro pro-forma basis (including a pro pro-forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock or the preferred stock had been issued, as the case may be, at the beginning of such the four-quarter period; provided. Notwithstanding the foregoing, furtherthe Enterprise shall not issue any Disqualified Stock or any type of Capital Stock that would cause the Enterprise not to be lawfully conducting gaming operations in compliance with IGRA. The first paragraph of this Section 4.09 shall not prohibit the incurrence of any of the following (collectively, "PERMITTED DEBT"), so long as at the time of incurrence, no Default or Event of Default has occurred and is continuing or would be caused thereby:
(a) the incurrence by the Enterprise of Indebtedness pursuant to the Credit Facilities, PROVIDED, HOWEVER, that the aggregate principal amount of such Indebtedness incurred pursuant to this clause (a) does not exceed $125.0 million less the aggregate amount of all Net Proceeds of Asset Sales applied by the Enterprise or any of its Restricted Subsidiaries since the date hereof to repay Indebtedness under Credit Facilities pursuant to Section 4.10 hereof;
(b) the incurrence by the Enterprise of the Existing Indebtedness;
(c) the incurrence by the Enterprise of the Excluded Debt;
(d) the incurrence by the Enterprise of Indebtedness represented by the Notes to be issued on the date hereof and the Exchange Notes to be issued pursuant to the Registration Rights Agreement;
(e) the incurrence by the Enterprise of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace, Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under the first paragraph of this Section 4.09 or clauses (b) or (d) of this paragraph;
(f) the incurrence by the Enterprise of Indebtedness in one or more FF&E Financings and Capital Lease Obligations to acquire or refinance furniture, fixtures or equipment incident to and useful in the Gaming Business of the Enterprise, in an aggregate principal amount under this clause (f) not to exceed $10.0 million outstanding at any one time;
(g) the incurrence by the Enterprise or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Enterprise and any of its Restricted Subsidiaries; PROVIDED, HOWEVER, that:
(i) if the Enterprise or any Subsidiary Guarantor is the obligor on that Indebtedness, that Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of the Enterprise, or the Subsidiary Guarantee, in the case of a Subsidiary Guarantor; and
(ii) (A) any subsequent issuance or transfer of Equity Interests that results in any Indebtedness being held by a Person other than the Enterprise or a Restricted Subsidiary and (B) any sale or other transfer of any Indebtedness to a Person other than the Enterprise or a Restricted Subsidiary, shall be deemed, in each case, to constitute an incurrence of Indebtedness by the Enterprise or the Restricted Subsidiary, as the case may be, that was not permitted by this clause (g);
(h) the incurrence by the Enterprise or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms hereof to be outstanding;
(i) the Guarantee by the Enterprise or any Subsidiary Guarantor of Indebtedness of the Enterprise or a Restricted Subsidiary of the Enterprise that was permitted to be incurred by another provision of this Section 4.09;
(j) the incurrence by the Enterprise or any of its Subsidiaries of Indebtedness in connection with letters of credit (including, without limitation, letters of credit in respect of workers' compensation claims or self-insurance, Indebtedness with respect to reimbursement type obligations, regarding workers' compensation claims, escrow agreements, bankers' acceptances and surety and performance bonds (in each case to the extent that such incurrence does not result in the incurrence of any obligation to repay any obligation relating to borrowed money), all in the ordinary course of business;
(k) Indebtedness arising from agreements of the Enterprise or a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or a Restricted Subsidiary, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Restricted Subsidiary for the purpose of financing such acquisition; PROVIDED, HOWEVER, that such Indebtedness is not reflected on the balance sheet of the Enterprise or any Restricted Subsidiary (contingent obligations referred to in a footnote to the financial statements and not otherwise reflected on the balance sheet shall not be deemed to be reflected on such balance sheet for purposes of this clause);
(l) the incurrence from time to time and at any time by any Subsidiary Guarantor of Indebtedness represented by a Subsidiary Guarantee; and
(m) the incurrence by the Enterprise or any of its Restricted Subsidiaries that are of other Indebtedness not Subsidiary Guarantors pursuant to this paragraph exceed $15.0 million at any one time outstanding. The Enterprise shall not exceed $10.0 millionincur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Enterprise unless such Indebtedness is also contractually subordinated in right of payment to the Notes on substantially identical terms; PROVIDED, HOWEVER, that no Indebtedness of the Enterprise shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Enterprise solely by virtue of being unsecured. For purposes of determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (a) through (m) above, or is entitled to be incurred under the first paragraph of this Section 4.09, the Enterprise shall be permitted to classify the item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of the item of Indebtedness, in any manner that complies with this Section 4.09.
Appears in 1 contract
Samples: Indenture (Mississippi Band of Choctaw Indians Dba Choctaw RSRT DVLP E)
Incurrence of Indebtedness and Issuance of Disqualified Stock. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “"incur”" or an "incurrence") any Indebtedness (including including, without limitation, Acquired Debt), Indebtedness) and that the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company or any and its Restricted Subsidiary Subsidiaries may incur Indebtedness (including Acquired Debt) or Indebtedness, and the Company may issue Disqualified Stock or preferred stockStock, if the Fixed Charge Consolidated Interest Coverage Ratio for the Company’s 's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or such preferred stock is issued, as the case may be, issued would have been at least 2.0 to 1.01, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness or Disqualified Stock had been issued or incurred at the beginning of such four- quarter period. The foregoing provisions shall not apply to:
(a) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness under Credit Facilities in an aggregate principal amount at any one time outstanding not to exceed the greater of (i) 85% of the amount of Eligible Receivables and (ii) $30.0 million (or the Disqualified Stock equivalent thereof in any other currency or currency unit), plus any fees, premiums, expenses (including costs of collection), indemnities and similar amounts payable in connection with such Indebtedness, and less any amounts repaid permanently in accordance with Section 4.10 hereof;
(b) the preferred stock had been issuedincurrence by the Company and its Restricted Subsidiaries of Existing Indebtedness;
(c) the incurrence by the Company and its Restricted Subsidiaries of Hedging Obligations;
(d) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness represented by the Original Notes, any Series B Notes issued in exchange for Series A Notes pursuant to an Exchange Offer, the Subsidiary Guarantees and this Indenture;
(e) the incurrence of intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries, provided that any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Wholly Owned Restricted Subsidiary of the Company, or any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Wholly Owned Restricted Subsidiary of the Company, shall be deemed to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be;
(f) Indebtedness in respect of bid, at performance or surety bonds issued for the beginning account of the Company or any Restricted Subsidiary thereof in the ordinary course of business, including guarantees or obligations of the Company or any Restricted Subsidiary thereof with respect to letters of credit supporting such four-quarter periodbid, performance or surety obligations (in each case other than for an obligation for money borrowed); providedand
(g) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, furtheror the net proceeds of which are used to extend, refinance, renew, replace, defease or refund Indebtedness that the aggregate principal amount of was permitted by this Indenture to be incurred (other than Indebtedness incurred by Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to clause (a) or (e) of this paragraph shall not exceed $10.0 million.Section 4.09
Appears in 1 contract
Samples: Indenture (American Eco Corp)
Incurrence of Indebtedness and Issuance of Disqualified Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company or any Restricted Subsidiary may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock and the Company’s Restricted Subsidiaries may incur Indebtedness or issue shares of preferred stock, stock if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such the additional Indebtedness is incurred or such the Disqualified Stock or such preferred stock is issued, as the case may be, issued would have been at least 2.0 to 1.01, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred incurred, or the Disqualified Stock or the preferred stock had been issued, as the case may be, at the beginning of such four-quarter period; provided, further, provided that the aggregate maximum principal amount of Indebtedness (including Acquired Debt), Disqualified Stock and preferred stock that may be incurred or issued, as applicable, pursuant to this paragraph by Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to this paragraph shall not exceed $10.0 million.50.0 million at any time outstanding. The provisions of the first paragraph of this Section 4.09 will not apply to the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Disqualified Stock. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company or any Restricted Subsidiary may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock and the Company’s Restricted Subsidiaries may incur Indebtedness or issue shares of preferred stock, stock if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such the additional Indebtedness is incurred or such the Disqualified Stock or such preferred stock is issued, as the case may be, issued would have been at least 2.0 to 1.01, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred incurred, or the Disqualified Stock or the preferred stock had been issued, as the case may be, at the beginning of such four-quarter period; provided, further, provided that the aggregate maximum principal amount of Indebtedness (including Acquired Debt), Disqualified Stock and preferred stock that may be incurred or issued, as applicable, pursuant to this paragraph by Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to this paragraph shall not exceed $10.0 50.0 million.. The provisions of the first paragraph of this Section 4.09 will not apply to the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):
Appears in 1 contract
