Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable with respect to (collectively, "INCUR") any Indebtedness (including Acquired Debt), and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDED, HOWEVER, that the Company may incur Indebtedness if (i) 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 would have been at least (a) 2.25 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 at the beginning of such four-quarter period and (ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notes. The foregoing limitations will not apply to (a) the incurrence by the Company or any of its Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, in an aggregate principal amount at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, (b) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (f) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable Subsidiary.
Appears in 1 contract
Samples: Indenture (Apparel Retailers Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company Issuer shall not, and shall not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), and the Company shall Issuer will not issue any Disqualified Stock and shall will not permit any of its Subsidiaries Restricted Subsidiary to issue any shares of preferred stockPreferred Stock; PROVIDEDprovided, HOWEVERhowever, that the Company Issuer may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and the Guarantors may incur Indebtedness (including Acquired Debt) or issue Preferred Stock, if (i) the Fixed Charge Coverage Consolidated Leverage Ratio for the Company's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding as of 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 (a) 2.25 no greater than 5.5 to 1, if such date is prior to August 15, 1995 and .
(b) 2.50 to 1 thereafter, in each case determined on a pro forma basis (including a pro forma application The provisions of Section 4.09(a) hereof shall not prohibit the incurrence of any of the net proceeds therefrom) as if the additional following items of Indebtedness had been incurred at the beginning of such four-quarter period and (ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notes. The foregoing limitations will not apply to collectively, "Permitted Debt"):
(ai) the incurrence by the Company or any of Issuer and its Restricted Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, credit under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (i) (with letters of credit being deemed to have a principal amount equal to the face amount thereof) not to exceed $25 400.0 million, less the aggregate amount of all Net Proceeds of Asset Sales that have been applied by the Issuer or any Restricted Subsidiary since the date of this Indenture to permanently reduce borrowings repay any term Indebtedness under a Credit Facility or to repay any revolving credit Indebtedness under a Credit Facility and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, effect a corresponding commitment reduction thereunder pursuant to Section 4.10;
(bii) the incurrence by the Company or any of Issuer and its Restricted Subsidiaries of the Existing Indebtedness, ;
(ciii) the incurrence by the Company Issuer and its Subsidiaries the Guarantors of Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (f) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted related Note Guarantees to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect issued on the date of this Indenture and the Exchange Notes and the related Note Guarantees to be issued pursuant to the Registration Rights Agreement;
(kiv) the incurrence by the Company Issuer or any Restricted Subsidiary of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement of property, plant or equipment used by the Issuer or any Restricted Subsidiary in any Permitted Business, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (iv), not to exceed $10.0 million;
(v) the incurrence by the Issuer or any Restricted Subsidiary of Permitted Refinancing Indebtedness 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) that was permitted by this Indenture to be incurred under Section 4.09(a) hereof or clauses (ii), (iii), (iv), (v), (xiii), (xv), or (xvii) of this Section 4.09(a) including additional Indebtedness incurred to pay premiums and its fees in connection therewith;
(vi) the incurrence by the Issuer or any Restricted Subsidiary of intercompany Indebtedness between or among the Issuer and any Restricted Subsidiary; provided, however, that:
(1) if the Issuer or any Guarantor is the obligor on such Indebtedness and the payee is not the Issuer or a Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes and the Note Guarantees; and
(2) any (A) subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Issuer or a Restricted Subsidiary of the Issuer, or (B) sale or other transfer of any such Indebtedness to a Person that is not either the Issuer or a Restricted Subsidiary of the Issuer, will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Issuer or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi);
(vii) the issuance by any of the Issuer's Restricted Subsidiaries to the Issuer or to any Restricted Subsidiary of shares of Preferred Stock; provided, however, that any (1) subsequent issuance or transfer of Equity Interests that results in any such Preferred Stock being held by a Person other than the Issuer or a Restricted Subsidiary of the Issuer, or (2) sale or other transfer of any such Preferred Stock to a Person that is not either the Issuer or a Restricted Subsidiary of the Issuer, will be deemed, in each case, to constitute an issuance of such Preferred Stock by such Restricted Subsidiary that was not permitted by this clause (vii);
(viii) the incurrence by the Issuer or any Restricted Subsidiary of Hedging Obligations with respect to long-term in the ordinary course of business and not for speculative purposes;
(x) the guarantee by the Issuer or any of the Guarantors of Indebtedness of an Accounts Receivable Subsidiary.the Issuer or a Restricted Subsidiary of the Issuer that was permitted to be incurred by another provision of this Section 4.09; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the Guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed and (y) any guarantee by a Restricted Subsidiary that is not a Guarantor of Indebtedness of another Restricted Subsidiary that is not a Guarantor that was permitted to be incurred by another provision of this Section 4.09;
Appears in 1 contract
Samples: Indenture (Cogent Management Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCUR") any Indebtedness (including Acquired Debt), Indebtedness) and the Company shall will not issue any Disqualified Stock and shall will not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock if (i) the Fixed Charge Coverage Ratio for the Company's Debt to Cash Flow Ratio at the time of incurrence of such Indebtedness or the issuance of such Disqualified Stock, after giving pro forma effect to such incurrence or issuance as of such date and to the use of proceeds therefrom as if the same had occurred at the beginning of the most recently ended four full fiscal quarters Reference Period of the Company for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred available, would have been at least (a) 2.25 no greater than 4.0 to 1, if such date 1.0. The Company shall not incur any Indebtedness that is prior contractually subordinated in right of payment to August 15, 1995 and (b) 2.50 to 1 thereafter, in each case determined on a pro forma basis (including a pro forma application any other Indebtedness of the net proceeds therefrom) as if the additional Indebtedness had been incurred at the beginning of such four-quarter period and (ii) Company unless such Indebtedness is pari passu with or also contractually subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity on substantially identical terms; provided, however, that is greater than the remaining Weighted Average Life to Maturity no Indebtedness of the NotesCompany shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company solely by virtue of being unsecured. The foregoing limitations provisions of the first paragraph of this section will not apply to the incurrence of any of the following items of Indebtedness (acollectively, "PERMITTED INDEBTEDNESS"):
(i) the incurrence by the Company or any of its Subsidiaries of revolving credit Indebtedness and (including letters of credit, with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and any extension, refinancing, renewal, replacement or refunding thereof, in an its Subsidiaries thereunder) under Credit Facilities; provided that the aggregate principal amount at any one time of all Indebtedness outstanding under all Credit Facilities after giving effect to such incurrence does not exceed an amount equal to exceed the greater of (a) $25 million, 100.0 million less the aggregate amount of all Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings repay revolving credit Indebtedness under a Credit Facility pursuant to Section 4.10 hereof other than Net Proceeds received pursuant to the Satellite Lease Arrangements and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, (b) the incurrence by Borrowing Base at the Company or any time of its Subsidiaries of the Existing Indebtedness, such incurrence;
(cii) the incurrence by the Company and its Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company of Indebtedness represented by the Notes and the Senior Notes, Exchange Notes and the guarantee by the Subsidiary Guarantors thereof;
(div) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed (subject to clause (x) below) $17.5 million at any time outstanding;
(v) the incurrence by the Company or any of its Subsidiaries of Indebtedness in connection with the acquisition of assets or a new Subsidiary; provided that such Indebtedness was incurred by the prior owner of such assets or such Subsidiary prior to such acquisition by the Company or one of its Subsidiaries and was not incurred in connection with, or in contemplation of, such acquisition by the Company or one of it Subsidiaries; and provided further that the principal amount (or accreted value, as applicable) of such Indebtedness, together with any other outstanding Indebtedness incurred pursuant to this clause (v), does not exceed (subject to clause (x) below) $17.5 million;
(vi) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extendrefund, refinance, renew, replace, refund refinance or defease, replace Indebtedness (other than intercompany Indebtedness) that is either Existing Indebtedness or was permitted by this Indenture to be incurred pursuant to under the immediately preceding first paragraph hereof or pursuant to clause clauses (biii), (civ), (v) or (gvi) of this paragraph paragraph;
("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1vii) the principal amount incurrence by the Company or any of such Refinancing Indebtedness shall not exceed the principal amount its Subsidiaries of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries Subsidiaries; provided, however, that are (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 a Subsidiary Guarantorsthereof and (B) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be, that was not permitted by this clause (fvii);
(viii) the incurrence by the Company of Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging interest rate risk with respect to variable any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding;
(ix) the guarantee by the Company or any of the Subsidiary Guarantors of Indebtedness of the Company or a Subsidiary of the Company that was permitted to be incurred by another provision of this Indenturecovenant;
(x) the incurrence by the Company or any Subsidiary Guarantor of Vendor Financing Indebtedness in an aggregate principal amount (or accreted value, as applicable) not to exceed $15.0 million outstanding at anytime; and
(gxi) the incurrence by the Company of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding not to exceed $10 million at any one time outstanding17.5 million; provided that the total amount of Indebtedness incurred by the Company pursuant to clauses (iv), (hv) Capital Lease Obligations and (xi) hereof does not, in an aggregate principal amount not to the aggregate, exceed $2 million at any 35.0 million. For purposes of determining compliance with this covenant, (a) in the event that an item of Indebtedness meets the criteria of more than one time outstanding, of the categories of Permitted Indebtedness described in clauses (i) purchase money through (xi) above or is entitled to be incurred pursuant to the first paragraph of this covenant, the Company shall, in its sole discretion, classify such item of Indebtedness and will only be required to include the amount and type of such Indebtedness in one of the above clauses, and (b) an aggregate principal amount item of Indebtedness may be divided and classified in more than one of the types of Indebtedness described herein. Accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to exceed $2 million at any one time outstanding, (j) the be an incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date or an issuance of Disqualified Stock for purposes of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable Subsidiarycovenant.
Appears in 1 contract
Samples: Indenture (Amsc Acquisition Co Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stockStock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness or issue Disqualified Stock and a Restricted Subsidiary may incur Acquired Debt if (i) the Fixed Charge Coverage Ratio ratio of Total Consolidated Indebtedness to Adjusted Consolidated Operating Cash Flow 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 is issued would have been at least (a) 2.25 less than or equal to 16.0 to 1.0, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period and period. The Company shall not incur any Indebtedness (iiincluding Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Company unless such Indebtedness is pari passu with or also contractually subordinated in right of payment to the Notes on substantially identical terms; provided, however, that no Indebtedness of the Company shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company solely by virtue of being unsecured. The provisions of the first paragraph of this Section 4.09 shall not apply to the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(i) the incurrence by the Company of Pari Passu Indebtedness or Satellite Vendor Indebtedness in an aggregate principal amount (including the aggregate principal amount of all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (i)), which does not exceed (a) $500 million plus (b) the amount equal to 125% of Total Incremental Equity as of the date of such incurrence;
(ii) unsecured subordinated Indebtedness or Disqualified Stock of the Company incurred to finance the construction, expansion, development or acquisition of music libraries and other recorded music programming, furniture, fixtures and equipment (including satellites, ground stations and related equipment) if such subordinated Indebtedness or Disqualified Stock, as applicable, has a Weighted Average Life to Maturity that is greater longer than the remaining Weighted Average Life to Maturity of the Notes and has a final Stated Maturity of principal later than the Stated Maturity of principal of the Notes. The foregoing limitations will ;
(iii) unsecured subordinated Indebtedness or Disqualified Stock of the Company in an aggregate principal amount (or liquidation preference, as applicable) (including the aggregate principal amount (or liquidation preference, as applicable) of all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness or Disqualified Stock, as applicable, incurred pursuant to this clause (iii)) at any time outstanding not apply to exceed the product of (a) $100.00 and (b) the number of Subscribers at such time if such subordinated Indebtedness or Disqualified Stock, as applicable, has a Weighted Average Life to Maturity longer than the Weighted Average Life to Maturity of the Notes and has a final Stated Maturity of principal later than the Stated Maturity of principal of the Notes;
(iv) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness and the incurrence by the Company and its Restricted Subsidiaries of Indebtedness pursuant to the Concurrent Financing Transactions;
(v) the incurrence by the Company of Indebtedness represented by the Notes;
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of creditfinancing all or any part of the purchase price or cost of acquisition, and any extensionconstruction or improvement of property, refinancing, renewal, replacement plant or refunding thereofequipment used in the business of the Company or such Subsidiary, in an aggregate principal amount at amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any one time outstanding Indebtedness incurred pursuant to this clause (vi), not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 30.0 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(bvii) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the Existing 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 covenant or clauses (i), (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notesii), (diii), (iv), (v), (vi), (vii), (xii), (xiii) or (xiv) of this paragraph;
(viii) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries Restricted Subsidiaries; provided, however, that: (a) if the Company is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes; and (b)
(i) any subsequent issuance or transfer of Equity Interests that are results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary Guarantorsthereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary thereof; shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (fviii);
(ix) the incurrence by the Company of Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging (x) interest rate risk with respect to variable any floating rate Indebtedness that is permitted by the terms of this Indenture to be incurred by this Indentureoutstanding or (y) fluctuation in currency values;
(x) the accrual of interest, (g) the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this covenant;
(xi) the incurrence by the Company of additional Indebtedness (including Acquired Debt) or Disqualified Stock in an aggregate principal amount (or liquidation preference or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness or Disqualified Stock incurred pursuant to this clause (xi), not to exceed $30.0 million;
(xii) Indebtedness the proceeds of which are utilized solely to finance working capital in an aggregate principal amount not to exceed the lesser of (a) $10 50.0 million at and (b) 80% of Qualified Receivables;
(xiii) from and after any Parent Company Merger, Indebtedness of Holdings in existence on the date hereof; and
(xiv) any Qualified Sale and Leaseback Transaction. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness meets the criteria of more than one time outstanding, (h) Capital Lease Obligations of the categories of Permitted Debt described in an aggregate principal amount not to exceed $2 million at any one time outstanding, clauses (i) purchase money Indebtedness in an aggregate principal amount not through (xiv) above, or is entitled to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness be incurred pursuant to the Registration Rights Agreement as in effect on the date first paragraph of this Indenture and (k) the incurrence by Section 4.09, the Company shall, in its sole discretion, classify such item of Indebtedness in any manner that complies with this Section 4.09, and its Subsidiaries such item of Hedging Obligations with respect Indebtedness shall be treated as having been incurred pursuant to long-term Indebtedness only one of an Accounts Receivable Subsidiarysuch clauses or pursuant to the first paragraph of this Section 4.09.
Appears in 1 contract
Samples: Indenture (Xm Satellite Radio Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), and the Company shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDED, HOWEVER, that the Company may incur Indebtedness if (iincluding Acquired Debt) the Fixed Charge Coverage Ratio for or issue shares of Disqualified Stock and the Company's Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) or issue shares of preferred stock if the Company's Debt to Cash Flow Ratio at the time of incurrence of such Indebtedness or the issuance of such Disqualified Stock or such preferred stock, as the case may be, after giving pro forma effect to such incurrence or issuance as of such date and to the use of the proceeds therefrom as if the same had occurred at the beginning of the most recently ended four full fiscal quarters quarter period of the Company for which internal financial statements have been furnished or are available immediately preceding required to be furnished to Holders of the date on which such additional Indebtedness is incurred Notes in reports pursuant to Section 4.03 hereof, would have been at least (a) 2.25 no greater than 6.0 to 1, if such date . The Company shall not incur any Indebtedness that is prior contractually subordinated in right of payment to August 15, 1995 and (b) 2.50 to 1 thereafter, in each case determined on a pro forma basis (including a pro forma application any other Indebtedness of the net proceeds therefrom) as if the additional Indebtedness had been incurred at the beginning of such four-quarter period and (ii) Company unless such Indebtedness is pari passu with or also contractually subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity on substantially identical terms; PROVIDED, HOWEVER, that is greater than the remaining Weighted Average Life to Maturity no Indebtedness of the NotesCompany shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company solely by virtue of being unsecured. The foregoing limitations first paragraph of this Section 4.09 will not apply to the incurrence of any of the following items of Indebtedness (acollectively, "Permitted Debt"):
(i) the incurrence by the Company and its Restricted Subsidiaries of additional Indebtedness under Credit Facilities, in an amount up to $1.5 billion;
(ii) the incurrence by the Company and its Restricted Subsidiaries of additional revolving credit Indebtedness and letters of credit pursuant to Credit Facilities in an aggregate principal amount (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) at any one time outstanding not to exceed the Specified Amount as of such date of incurrence; PROVIDED that the aggregate principal amount of all Indebtedness incurred pursuant to this clause (ii) is reduced to an outstanding balance of $1.0 million or less for at least 30 consecutive days in each fiscal year;
(iii) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(iv) the incurrence by the Company of Indebtedness represented by the Notes (other than any Additional Notes);
(v) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the purpose of creditfinancing all or any part of the purchase price or cost of construction or improvement of property, and any extension, refinancing, renewal, replacement plant or refunding thereofequipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 50.0 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(bvi) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the Existing Indebtednessnet proceeds of which are used to refund, refinance or replace Indebtedness (cother than intercompany Indebtedness and Indebtedness incurred pursuant to clauses (i) the incurrence and (ii) above) that was permitted by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, this Indenture to be incurred;
(dvii) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries Restricted Subsidiaries; PROVIDED, HOWEVER, that are (a) if the Company is the obligor on any such intercompany Indebtedness, such Indebtedness is, if any Default or Event of Default with respect to the Company occurs and is continuing, expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes and (b)
(1) any subsequent issuance or transfer of Equity Interests that results in any such intercompany Indebtedness being held by a Person other than the Company or a Restricted Subsidiary Guarantorsthereof and (2) any sale or other transfer of any such intercompany Indebtedness to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an incurrence of such intercompany Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (fvii);
(viii) the incurrence by the Company or any of its Restricted Subsidiaries of (a) Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging interest rate risk with respect to variable any floating rate Indebtedness that is permitted by the terms of this Indenture to be incurred and (b) Currency Agreements that do not increase the Indebtedness of the Company and its Restricted Subsidiaries outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder;
(ix) Indebtedness in respect of performance bonds, letters of credits, surety or appeal bonds, prior to any drawing thereunder, for or in connection with pledges, deposits or payments made or given in the ordinary course of business;
(x) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this IndentureSection 4.09 (including, without limiting the generality of the foregoing, the guarantee by the Company or any Restricted Subsidiary of the Company of Existing Indebtedness);
(gxi) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, PROVIDED, HOWEVER, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of 48 Indebtedness by a Restricted Subsidiary of the Company that was not permitted by this clause (xi); and
(xii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xii), not to exceed $10 million at any 100.0 million. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness (including Acquired Debt) meets the criteria of more than one time outstanding, (h) Capital Lease Obligations of the categories of Permitted Debt described in an aggregate principal amount not to exceed $2 million at any one time outstanding, clauses (i) purchase money through (xii) above or is entitled to be incurred pursuant to the first paragraph of this Section 4.09, the Company shall, in its sole discretion, classify (or later reclassify in whole or in part, in its sole discretion) such item of Indebtedness in any manner that complies with this Section 4.09. Accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on preferred stock in the form of additional shares of the same class of preferred stock will not be deemed to be an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date or an issuance of preferred stock for purposes of this Indenture and (k) Section 4.09; PROVIDED, in each such case, that the incurrence by amount thereof is included in Consolidated Indebtedness of the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable Subsidiaryas accrued.
Appears in 1 contract
Samples: Indenture (Six Flags Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCUR"“incur”) any Indebtedness (including Acquired Debt), and the Company shall will not issue any Disqualified Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and the Guarantors may incur Indebtedness (including Acquired Debt) or issue preferred stock, if (i) the Fixed Charge Company’s Consolidated 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 would have been be at least (a) 2.25 2.0 to 11.0, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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, at the beginning of such four-quarter period period.
(b) The provisions of Section 4.09(a) hereof will not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):
(1) (x) the incurrence by the Company and any Guarantor of additional Indebtedness and letters of credit under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (1)(x) (with letters of credit being deemed to have a principal amount equal to the face amount thereof issued but not reimbursed) not to exceed $1,400.0 million, less (i) the aggregate principal amount of Indebtedness incurred pursuant to clause (y) of this paragraph then outstanding and (ii) such the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any of its Restricted Subsidiaries since the date of this Indenture to repay any term Indebtedness is pari passu under a Credit Facility incurred in reliance on this clause (1) or to repay any revolving credit Indebtedness under a Credit Facility incurred in reliance on this clause (1) and effect a corresponding commitment reduction thereunder to the extent required by Section 4.10 hereof; and (y) the incurrence by the Canadian Credit Parties of Indebtedness under the Credit Agreement in an aggregate principal amount at any one time outstanding under this clause (1) (with or subordinated in right letters of payment credit being deemed to have a principal amount equal to the face amount thereof issued but not reimbursed) not to exceed $200.0 million;
(2) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Company and the Guarantors of Indebtedness represented by the Notes and has a Weighted Average Life the related Note Guarantees to Maturity that is greater than be issued on the remaining Weighted Average Life date of this Indenture and the Exchange Notes and the related Note Guarantees to Maturity be issued pursuant to the Registration Rights Agreement and the Senior Subordinated Notes and related Senior Subordinated Note Guarantees to be issued on the date of the Notes. The foregoing limitations will not apply Senior Subordinated Indenture and the Exchange Senior Subordinated Notes and related Senior Subordinated Note Guarantees to be issued pursuant to the Registration Rights Agreement;
(a4) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of creditfinancing all or any part of the purchase price or cost of design, and construction, installation or improvement of property, plant or equipment used in the business of the Company or any extension, refinancing, renewal, replacement or refunding thereofof its Restricted Subsidiaries, in an aggregate principal amount at amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any one time outstanding Indebtedness incurred pursuant to this clause (4), not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 25.0 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(b5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the Existing net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a) hereof or clauses (2), (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes3), (d4), (5), (12), (13) or (15) of this Section 4.09(b);
(6) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries; provided, however, that:
(a) if the Company or any Guarantor is the obligor on such Indebtedness and the payee is not the Company or a Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor; and
(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 an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was 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 are results in any such preferred stock being held by a Person other than the Company or a Restricted Subsidiary Guarantorsof 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 an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (f7);
(8) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business;
(9) the guarantee by the Company or any of the 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 or pari passu with the Notes, then the Guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(10) the incurrence by the Company or any of Hedging Obligations to protect its Restricted Subsidiaries of Indebtedness in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance and surety bonds in the ordinary course of business;
(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 drawn against interest rate risk insufficient funds, so long as such Indebtedness is covered within five Business Days;
(12) Indebtedness of a Restricted Subsidiary incurred and outstanding on or prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness incurred in contemplation of, or in connection with, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary of or was otherwise acquired by the Company); provided, however, that on the date that such Restricted Subsidiary is acquired by the Company, the Company would have been able to incur $1.00 of additional Indebtedness pursuant to Section 4.09(a) hereof after giving effect to the incurrence of such Indebtedness pursuant to this clause (12);
(13) the incurrence by Non-Guarantor Subsidiaries of Indebtedness in an aggregate principal amount at any time outstanding pursuant to this clause (13), including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (13), not to exceed $125.0 million (or the equivalent thereof, measured at the time of each incurrence, in applicable foreign currency);
(14) the incurrence of Indebtedness arising from agreements of the Company or any of its 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 Capital Stock of a Restricted Subsidiary; provided that the maximum aggregate liability in respect to variable rate of all such Indebtedness permitted to be incurred shall at no time exceed the gross proceeds actually received by this Indenture, the Company and its Restricted Subsidiaries in connection with such disposition; and
(g15) the incurrence by the Company or the Guarantors of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (15), not to exceed $10 million at an amount equal to 5.0% of Consolidated Net Worth. The Company will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Note Guarantee on substantially identical terms; provided, however, that no Indebtedness shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company solely by virtue of being unsecured or by virtue of being secured on a first or junior Lien basis. For purposes of determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness, Disqualified Stock or preferred stock meets the criteria of more than one time outstandingof the categories of Permitted Debt described in clauses (1) through (15) above, or is entitled to be incurred pursuant to Section 4.09(a) hereof, the Company will be permitted to classify such item of Indebtedness, Disqualified Stock or preferred stock on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, Disqualified Stock or preferred stock in any manner that complies with this Section 4.09. Indebtedness under Credit Facilities outstanding on the date on which Notes are first issued and authenticated under this Indenture will initially be deemed to have been incurred on such date in reliance on the exception provided by clause (h1) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at of the definition of Permitted Debt. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any one time outstanding, (i) purchase money Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an aggregate principal incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09; provided, in each such case, that the amount not to exceed $2 million at of any one time outstandingsuch accrual, (j) accretion or payment is included in Consolidated Interest Expense of the Company as accrued. For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness pursuant where the Indebtedness to be incurred is denominated in a different currency, (1) the Registration Rights Agreement as in effect amount of such Indebtedness shall be the U.S. Dollar Equivalent determined on the date of this Indenture the incurrence of such Indebtedness and (k2) in the case of any Permitted Refinancing Indebtedness incurred in the same currency as the Indebtedness being refinanced, the principal amount thereof shall be the U.S. Dollar Equivalent of the Indebtedness being refinanced, except to the extent that the principal amount of the Permitted Refinancing Indebtedness exceeds the principal amount of the Indebtedness being refinanced, in which case the U.S. Dollar Equivalent of such excess principal amount shall be determined on the date such Permitted Refinancing Indebtedness is incurred. Notwithstanding any other provision of this Section 4.09, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values subsequent to the incurrence of such Indebtedness. The amount of any Indebtedness outstanding as of any date will be:
(1) the incurrence by accreted value of the Company and its Subsidiaries Indebtedness, in the case of Hedging Obligations any Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(3) in respect to long-term of Indebtedness of an Accounts Receivable Subsidiaryanother Person secured by a Lien on the assets of the specified Person, the lesser of:
(a) the Fair Market Value of such assets at the date of determination; and
(b) the amount of the Indebtedness of the other Person.
Appears in 1 contract
Samples: Indenture (Georgia Gulf Corp /De/)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable with respect to (collectively, "INCUR") incur any Indebtedness (including Acquired Debt), and the Company shall not issue any Disqualified Stock and shall Issuer will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company Issuer and the Guarantors may incur Indebtedness (including Acquired Debt) and the Guarantors may issue preferred stock, if (i) the Fixed Charge Coverage Ratio for the Company's Issuer’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 preferred stock is issued would have been at least (a) 2.25 2.00 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 preferred stock had been issued, as the case may be, at the beginning of such four-quarter period and period.
(iib) such Indebtedness is pari passu with or subordinated in right Section 4.10(a) will not prohibit the incurrence of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity any of the Notes. The foregoing limitations will not apply to following items of Indebtedness (collectively, “Permitted Debt”):
(1) (a) the incurrence by the Company Issuer or any Guarantor of its Subsidiaries Indebtedness under Credit Facilities (and the incurrence by the Guarantors of revolving credit Guarantees thereof) and (b) the incurrence by a Receivables Subsidiary of Indebtedness and letters that is not recourse to the Issuer or any other Restricted Subsidiary of credit, and any extension, refinancing, renewal, replacement or refunding thereof, the Issuer (other than Standard Securitization Undertakings) incurred in connection with a Qualified Receivables Transaction) in an aggregate principal amount at any one time outstanding (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Issuer and its Restricted Subsidiaries thereunder) for Indebtedness incurred under clauses (a) and (b) not to exceed (as of any date of incurrence of Indebtedness pursuant to this clause (1) and after giving pro forma effect to such incurrence and the application of the net proceeds therefrom) the greater of (x) $25 million, 70.0 million and (y) the Borrowing Base and in each case less the any amount of Net Proceeds of Asset Sales that have been applied used to permanently repay such Obligations (or permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, with respect thereto) pursuant to Section 4.13 hereof;
(b2) Existing Indebtedness;
(3) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company Issuer and its Restricted Subsidiaries of Indebtedness represented by the Notes to be issued on the date of this Indenture and related Note Guarantees, any Exchange Notes and the Senior Notes, related Note Guarantees that may be issued pursuant to the Registration Rights Agreement;
(d4) the incurrence by the Company Issuer or any of its Restricted Subsidiaries of Indebtedness issued represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in exchange foreach case, incurred for the purpose of financing all or any part of the purchase price, or the proceeds cost of which are used to extendconstruction or improvement, refinance, renew, replace, refund of property (real or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (bpersonal), (c) plant or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) equipment used in the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity business of the Indebtedness being extended, refinanced, renewed, replaced, refunded Issuer or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries that are Subsidiary Guarantors, pursuant to this clause (f4) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 30.0 million at any one time outstanding;
(5) the incurrence by the Issuer or any of 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 is permitted by this Indenture to be incurred under Section 4.10(a) or clause (2), (h3), (5) Capital Lease or (17) of this Section 4.10(b);
(6) the incurrence by the Issuer or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Issuer and any of its Restricted Subsidiaries; provided, however, that:
(a) if the Issuer or any Guarantor is the obligor on such Indebtedness, and such Indebtedness is owed to a Restricted Subsidiary that is not a Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in an aggregate principal amount not to exceed $2 million at any one time outstandingthe case of the Issuer, or the Note Guarantee, in the case of a Guarantor; 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 Issuer or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Issuer or a Restricted Subsidiary thereof, shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Issuer or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);
(7) the incurrence by the Issuer or any of its Restricted Subsidiaries of Hedging Obligations that are incurred in the ordinary course of business for the purpose of fixing, hedging or swapping interest rate, commodity price or foreign currency exchange rate risk (or to reverse or amend any such agreements previously made for such purposes), and not for speculative purposes, and that do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in interest rates, commodity prices or foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder;
(8) the Guarantee by the Issuer or any Restricted Subsidiary of any obligations including Indebtedness of the Issuer or a Restricted Subsidiary of the Issuer that was permitted to be incurred by another provision of this Section 4.10; provided that, in the case of a Guarantee of any Restricted Subsidiary that is not a Guarantor, such Restricted Subsidiary complies with Section 4.16;
(9) the accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock or preferred stock in the form of additional shares of the same class of Disqualified Stock or preferred stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred stock for purposes of this Section 4.10; provided, in each such case, that the amount thereof is included in Fixed Charges of the Issuer as accrued;
(10) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness and cash management obligations in respect of netting services, automatic clearinghouse arrangements, overdraft protectors, employee credit card programs and other cash management and similar arrangements, including Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business;
(11) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit and bank guarantees issued in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claims or self-insurance, or other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims or self-insurance; 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;
(12) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness arising from agreements of the Issuer or such Restricted Subsidiary providing for indemnification, adjustment of purchase money price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or Capital Stock of the Issuer or a Restricted 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 that the maximum assumable liability in respect of that Indebtedness shall at no time exceed the gross proceeds including non-cash proceeds (the fair market value of those non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Issuer and/or that Restricted Subsidiary in connection with that disposition;
(13) the issuance of Disqualified Stock or preferred stock by any of the Issuer’s Restricted Subsidiaries issued to the Issuer or another Restricted Subsidiary; provided that (i) any subsequent issuance or transfer of any equity securities that results in such Disqualified Stock or preferred stock being held by a Person other than the Issuer or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such shares of Disqualified Stock or preferred stock to a Person that is not either the Issuer or a Restricted Subsidiary thereof shall be deemed, in each case, to constitute an issuance of such shares of Disqualified Stock or preferred stock that was not permitted by this clause (13);
(14) the incurrence by the Issuer or any of its Restricted Subsidiaries of obligations in respect of performance and surety bonds and completion Guarantees provided by the Issuer or such Restricted Subsidiary in the ordinary course of business;
(15) the incurrence by the Issuer or any Guarantor of Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding incurred pursuant to this clause (15) not to exceed $2 million 20.0 million;
(16) the incurrence by the Foreign Restricted Subsidiaries of the Issuer of Indebtedness in an aggregate principal amount at any one time outstandingoutstanding (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Restricted Subsidiaries thereunder) incurred pursuant to this clause (16) not to exceed $10.0 million;
(17) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(18) the incurrence by the Issuer of Indebtedness to effect the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Issuer or any Parent, in each case held by any former or current employees, officers, directors or consultants of the Issuer or any of its Restricted Subsidiaries or their respective estates, spouses, former spouses or family members under any management equity plan or stock option or other management or employee benefit plan upon the death, disability or termination of employment of such Persons in an aggregate amount at any one time outstanding not to exceed the maximum amount of such acquisitions pursuant to Section 4.11(b)(5);
(j19) the incurrence of Indebtedness of the Issuer or any Restricted Subsidiary supported by a letter of credit issued pursuant to the Registration Rights Credit Agreement as in effect a principal amount not in excess of the stated amount of such letter of credit; and
(20) contingent liabilities related to customary earn-outs, purchase price adjustments and indemnities in acquisition agreements and otherwise permitted under this Indenture; provided that the amount of such contingent liabilities shall not exceed the fair market value of assets acquired (in the case of an acquisition) or the purchase price paid to the Issuer or a Restricted Subsidiary (in the case of a disposition). For purposes of determining compliance with this Section 4.10, in the event that any proposed Indebtedness or preferred stock meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (20) above, or is entitled to be incurred pursuant to Section 4.10(a), the Issuer will be permitted to divide or classify such item on the date of its incurrence, and from time to time may reclassify, in any manner that complies with this Section 4.10 at such time. Indebtedness under the Credit Agreement on the date of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect shall be deemed to long-term Indebtedness of an Accounts Receivable Subsidiaryhave been incurred on such date pursuant to Section 4.10(b)(1).
Appears in 1 contract
Samples: Indenture (Headwaters Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCUR"“incur;” with “incurrence” having a correlative meaning) any Indebtedness (including Acquired Debt), and the Company shall will not issue any Disqualified Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) and issue Disqualified Stock, and Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) and issue preferred stock, 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 preferred stock is issued, as the case may be, would have been at least (a) 2.25 to 11.0, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 preferred stock had been issued, as the case may be, at the beginning of such four-quarter period period.
(b) Notwithstanding the foregoing, Section 10.11(a) will not prohibit the incurrence of any of the following (the items of Indebtedness described below in this Section 10.11(b) being referred to collectively as “Permitted Debt”):
(i) the incurrence by the Company and any Restricted Subsidiary of Indebtedness and letters of credit under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (i) (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 the greater of (x) $1.1 billion and (y) 20% of Adjusted Consolidated Net Tangible Assets, determined as of the date of the incurrence of such Indebtedness after giving pro forma effect to such incurrence and the application of the proceeds therefrom;
(ii) such the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company and the Guarantors of Indebtedness is pari passu with or subordinated in right of payment to represented by the Notes and has a Weighted Average Life to Maturity that is greater than or the remaining Weighted Average Life to Maturity Guarantees of the Notes. The foregoing limitations will not apply , to be incurred by the Company and the Guarantors on the Issue Date of the Notes;
(aiv) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of creditfinancing all or any part of the purchase price or cost of design, and construction, installation or improvement of property, plant or equipment used in the business of the Company or any extension, refinancing, renewal, replacement or refunding thereofof its Restricted Subsidiaries, in an aggregate principal amount at amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any one time outstanding Indebtedness incurred pursuant to this clause (iv), not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 50.0 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(bv) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the Existing net proceeds of which are used to refund, refinance, replace, defease or discharge Indebtedness (other than intercompany Indebtedness) or Disqualified Stock of the Company, or Indebtedness (other than intercompany Indebtedness) or preferred stock of a Restricted Subsidiary, in each case that was permitted by this Indenture to be incurred or issued under Section 10.11(a) or clauses (ii), (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notesiii), (div), (v) or (x) of this Section 10.11(b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries; provided, however, that (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 a Restricted Subsidiary and (B) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi);
(vii) 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 are results in any such preferred stock being held by a Person other than the Company or a Restricted Subsidiary; 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, will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary Guarantorsthat was not permitted by this clause (vii); 49 Seventh Supplemental Indenture
(viii) the incurrence of obligations of the Company or a Restricted Subsidiary pursuant to Interest Rate and Currency Xxxxxx, in each case entered into in the ordinary course of business for the purpose of limiting risks that arise in the ordinary course of business of the Company and its Restricted Subsidiaries;
(fix) the guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Restricted Subsidiary that was permitted to be incurred by another provision of this covenant; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(x) Permitted Acquisition Indebtedness;
(xi) the incurrence by the Company or any Restricted Subsidiary of Hedging Obligations to protect Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within five Business Days;
(xii) Indebtedness consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company against interest rate risk and the Restricted Subsidiaries;
(xiii) the incurrence by the Company or any Restricted Subsidiary of Indebtedness arising from agreements of the Company or any of its 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 Capital Stock of a Subsidiary, provided that the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the Company and its Restricted Subsidiaries in connection with such disposition;
(xiv) the incurrence by the Company or any Restricted Subsidiary of Indebtedness arising from Guarantees of Indebtedness of joint ventures at any time outstanding not to variable rate exceed the greater of $50.0 million and 1.0% of Adjusted Consolidated Net Tangible Assets determined as of the date of incurrence of such Indebtedness permitted after giving pro forma effect to be incurred such incurrence and the application of proceeds thereof; and
(xv) the incurrence by this Indenture, (g) additional the Company or any of its Restricted Subsidiaries of Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding(or accreted value, as applicable) that, when taken together with all other Indebtedness of the Company outstanding on the date of such incurrence (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, other than Indebtedness permitted by clauses (i) purchase money through (xiv) above or Section 10.11(a)) does not exceed the greater of (x) 2.5% of Adjusted Consolidated Net Tangible Assets determined as of the date of incurrence of such Indebtedness and (y) $125.0 million.
(c) For purposes of determining compliance with this Section 10.11, 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 (i) through (xv) of Section 10.11(b), or is entitled to be incurred pursuant to Section 10.11(a), the Company will be permitted to divide and classify such item of Indebtedness on the date of its incurrence, or later divide and reclassify all or a portion of 50 Seventh Supplemental Indenture such item of Indebtedness, in any manner that complies with this Section 10.11. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in an aggregate principal amount the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will be deemed not to exceed $2 million at be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this covenant; provided, in each such case, that the amount of any one time outstandingsuch accrual, accretion or payment is included in Fixed Charges of the Company as accrued.
(jd) For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness pursuant and issuance of preferred stock, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the Registration Rights Agreement as applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. Notwithstanding any other provision of this Indenture and (k) Section 10.11, the incurrence by maximum amount of Indebtedness that the Company and its Subsidiaries may incur pursuant to this Section 10.11 shall not be deemed to be exceeded solely as a result of Hedging Obligations with respect fluctuations in the exchange rate of currencies. The principal amount of any Permitted Refinancing Indebtedness incurred to long-term refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Permitted Refinancing Indebtedness is denominated that is in effect on the date of an Accounts Receivable Subsidiarysuch refinancing.
Appears in 1 contract
Samples: Seventh Supplemental Indenture (Plains Exploration & Production Co)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company and the Guarantors shall not, and shall not permit any of its their Subsidiaries to, directly directly, or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company or any Guarantor may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock if (i) the Fixed Charge Coverage Ratio for the Company's Leverage Ratio at the time of incurrence of such Indebtedness or the issuance of such Disqualified Stock or such preferred stock, as the case may be, after giving pro forma effect to such incurrence or issuance as of such date and to the use of the proceeds therefrom as if the same had occurred at the beginning of the most recently ended four full fiscal quarters quarter period of the Company for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred available, would have been at least (a) 2.25 no greater than 7.0 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, in each case determined on a pro forma basis (including a pro forma application . The provisions of the net proceeds therefromfirst paragraph of this Section 4.09 shall not prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(i) as if the incurrence by the Company and any Guarantor of additional Indebtedness had been incurred and letters of credit under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (i) (with letters of credit being deemed to have a principal amount equal to the beginning maximum potential liability of such four-quarter period the Company and its Subsidiaries thereunder) not to exceed $600.0 million less the aggregate amount applied by the Company and the Restricted Subsidiaries to permanently reduce the availability of Indebtedness under the Credit Facility pursuant to Section 4.10;
(ii) such the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company and the Guarantors of Indebtedness is pari passu with or subordinated in right of payment to represented by the Notes and has a Weighted Average Life the related Subsidiary Guarantees to Maturity that is greater than be issued on the remaining Weighted Average Life to Maturity date of the Notes. The foregoing limitations will not apply to this Indenture;
(aiv) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the purpose of creditfinancing all or any part of the purchase price or cost of construction or improvement of property, and plant or equipment whether through the direct purchase of assets or at least a majority of the Voting Stock of any extension, refinancing, renewal, replacement or refunding thereofperson owning such assets, in an aggregate principal amount at amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any one time outstanding Indebtedness incurred pursuant to this clause (iv) not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 10.0 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(bv) the incurrence by the Company or any of its Restricted Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Permitted Refinancing Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extendrefund, refinance, renew, replace, refund refinance or defease, replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred pursuant to under the immediately preceding first paragraph of this Section 4.09 or pursuant to clause clauses (bii), (ciii), (iv), (v), (x) or (gxii) of this paragraph paragraph.
("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1vi) the principal amount incurrence by the Company or any of such Refinancing Indebtedness shall not exceed the principal amount its Restricted Subsidiaries of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries Subsidiaries; provided, however, that are (x) 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 Subsidiary Guarantorsof the Company and (y) 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, shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (fvi);
(vii) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging (x) interest rate risk with respect to variable any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding or (y) currency exchange rate risk in ordinary course of business;
(viii) the guarantee by the Company of Indebtedness of any of Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Indenturecovenant;
(ix) the guarantee by any Restricted Subsidiary of Indebtedness of the Company or any Guarantor that was permitted to be incurred by another provision of this covenant;
(x) Indebtedness incurred by the Company or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including without limitation letters of credit in respect to workers' compensation claims or self-insurance, or other Indebtedness with respect to reimbursement type obligations regarding workers' compensation claims; provided, however, that upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;
(xi) Obligations in respect of performance and surety bonds and completion guarantees provided by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(xii) Acquisition Debt of the Company or a Restricted Subsidiary if (w) such Acquisition Debt is incurred within 270 days after the date on which the related definitive acquisition agreement or LMA, as the case may be, was entered into by the Company or such Restricted Subsidiary, (gx) additional the aggregate principal amount of such Acquisition Debt is no greater than the aggregate principal amount of Acquisition Debt set forth in a notice from the Company to the Trustee (an "Incurrence Notice") within ten days after the date on which the related definitive acquisition agreement or LMA, as the case may be, was entered into by the Company or such Restricted Subsidiary, which notice shall be executed on the Company's behalf by the chief financial officer of the Company in such capacity and shall describe in reasonable detail the acquisition or LMA, as the case may be, which such Acquisition Debt shall be incurred to finance, (y) after giving pro forma effect to the acquisition or LMA, as the case may be, described in such Incurrence Notice, the Company or such Restricted Subsidiary could have incurred such Acquisition Debt under this Indenture as of the date upon which the Company delivers such Incurrence Notice to the Trustee and (z) such Acquisition Debt is utilized solely to finance the acquisition or LMA, as the case may be, described in such Incurrence Notice (including to repay or refinance indebtedness or other obligations incurred in connection with such acquisition or LMA, as the case may be, and to pay related fees and expenses);
(xiii) guarantees by the Company or any Restricted Subsidiary of Indebtedness of officers of the Company or any Restricted Subsidiary in an aggregate principal amount not to exceed $10 5.0 million at any one time outstanding;
(xiv) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event will be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Company that was not permitted by this clause (hxiv); and
(xv) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at the incurrence by the Company or any one time outstanding, (i) purchase money of the Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (xv), not to exceed $2 million at any 20.0 million. 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 time outstandingof the categories of Permitted Debt described in clauses (i) through (xv) above, (j) the incurrence of Indebtedness or is entitled to be incurred pursuant to the Registration Rights Agreement as in effect first paragraph of this Section 4.09, the Company shall be 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. Accrual of interest, accretion or amortization of original issue discount and the accretion of accreted value shall not be deemed to be an incurrence of Indebtedness for purposes of this Section 4.09. Indebtedness under Credit Facilities outstanding on the date on which Notes are first issued and authenticated under this Indenture and shall be deemed to have been incurred on such date in reliance on the exception provided by clause (ki) of the incurrence by the Company and its Subsidiaries definition of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable SubsidiaryPermitted Debt.
Appears in 1 contract
Samples: Indenture (Radio One Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCUR"“incur”) any Indebtedness (including Acquired Debt), and the Company shall will not issue any Disqualified Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and the Guarantors may incur Indebtedness (including Acquired Debt) or issue preferred stock, if (i) the Fixed Charge Company’s Consolidated 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 would have been be at least (a) 2.25 2.0 to 11.0, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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, at the beginning of such four-quarter period period.
(b) The provisions of Section 4.09(a) hereof will not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):
(1) (x) the incurrence by the Company and any Guarantor of additional Indebtedness and letters of credit under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (1)(x) (with letters of credit being deemed to have a principal amount equal to the face amount thereof issued but not reimbursed) not to exceed $1,400.0 million, less (i) the aggregate principal amount of Indebtedness incurred pursuant to clause (y) of this paragraph then outstanding and (ii) such the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any of its Restricted Subsidiaries since the date of this Indenture to repay any term Indebtedness is pari passu under a Credit Facility incurred in reliance on this clause (1) or to repay any revolving credit Indebtedness under a Credit Facility incurred in reliance on this clause (1) and effect a corresponding commitment reduction thereunder to the extent required by Section 4.10 hereof; and (y) the incurrence by the Canadian Credit Parties of Indebtedness under the Credit Agreement in an aggregate principal amount at any one time outstanding under this clause (1) (with or subordinated in right letters of payment credit being deemed to have a principal amount equal to the face amount thereof issued but not reimbursed) not to exceed $200.0 million;
(2) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Company and the Guarantors of Indebtedness represented by the Notes and has a Weighted Average Life the related Note Guarantees to Maturity that is greater than be issued on the remaining Weighted Average Life date of this Indenture and the Exchange Notes and the related Note Guarantees to Maturity be issued pursuant to the Registration Rights Agreement and the Senior Notes and related Senior Note Guarantees to be issued on the date of the Notes. The foregoing limitations will not apply Senior Indenture and the Exchange Senior Notes and related Senior Note Guarantees to be issued pursuant to the Registration Rights Agreement;
(a4) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of creditfinancing all or any part of the purchase price or cost of design, and construction, installation or improvement of property, plant or equipment used in the business of the Company or any extension, refinancing, renewal, replacement or refunding thereofof its Restricted Subsidiaries, in an aggregate principal amount at amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any one time outstanding Indebtedness incurred pursuant to this clause (4), not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 25.0 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(b5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the Existing net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a) hereof or clauses (2), (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes3), (d4), (5), (12), (13) or (15) of this Section 4.09(b);
(6) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries; provided, however, that:
(a) if the Company or any Guarantor is the obligor on such Indebtedness and the payee is not the Company or a Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor; and
(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 an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was 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 are results in any such preferred stock being held by a Person other than the Company or a Restricted Subsidiary Guarantorsof 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 an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (f7);
(8) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business;
(9) the guarantee by the Company or any of the 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 or pari passu with the Notes, then the Guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(10) the incurrence by the Company or any of Hedging Obligations to protect its Restricted Subsidiaries of Indebtedness in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance and surety bonds in the ordinary course of business;
(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 drawn against interest rate risk insufficient funds, so long as such Indebtedness is covered within five Business Days;
(12) Indebtedness of a Restricted Subsidiary incurred and outstanding on or prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness incurred in contemplation of, or in connection with, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary of or was otherwise acquired by the Company); provided, however, that on the date that such Restricted Subsidiary is acquired by the Company, the Company would have been able to incur $1.00 of additional Indebtedness pursuant to Section 4.09(a) hereof after giving effect to the incurrence of such Indebtedness pursuant to this clause (12);
(13) the incurrence by Non-Guarantor Subsidiaries of Indebtedness in an aggregate principal amount at any time outstanding pursuant to this clause (13), including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (13), not to exceed $125.0 million (or the equivalent thereof, measured at the time of each incurrence, in applicable foreign currency);
(14) the incurrence of Indebtedness arising from agreements of the Company or any of its 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 Capital Stock of a Restricted Subsidiary; provided that the maximum aggregate liability in respect to variable rate of all such Indebtedness permitted to be incurred shall at no time exceed the gross proceeds actually received by this Indenture, the Company and its Restricted Subsidiaries in connection with such disposition; and
(g15) the incurrence by the Company or the Guarantors of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (15), not to exceed $10 million at an amount equal to 5.0% of Consolidated Net Worth. For purposes of determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness, Disqualified Stock or preferred stock meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (15) above, or is entitled to be incurred pursuant to Section 4.09(a) hereof, the Company will be permitted to classify such item of Indebtedness, Disqualified Stock or preferred stock on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, Disqualified Stock or preferred stock in any one time outstandingmanner that complies with this Section 4.09. Indebtedness under Credit Facilities outstanding on the date on which Notes are first issued and authenticated under this Indenture will initially be deemed to have been incurred on such date in reliance on the exception provided by clause (1) of the definition of Permitted Debt. The accrual of interest, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at the accretion or amortization of original issue discount, the payment of interest on any one time outstanding, (i) purchase money Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an aggregate principal incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09; provided, in each such case, that the amount not to exceed $2 million at of any one time outstandingsuch accrual, (j) accretion or payment is included in Consolidated Interest Expense of the Company as accrued. For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness pursuant where the Indebtedness to be incurred is denominated in a different currency, (1) the Registration Rights Agreement as in effect amount of such Indebtedness shall be the U.S. Dollar Equivalent determined on the date of this Indenture the incurrence of such Indebtedness and (k2) in the case of any Permitted Refinancing Indebtedness incurred in the same currency as the Indebtedness being refinanced, the principal amount thereof shall be the U.S. Dollar Equivalent of the Indebtedness being refinanced, except to the extent that the principal amount of the Permitted Refinancing Indebtedness exceeds the principal amount of the Indebtedness being refinanced, in which case the U.S. Dollar Equivalent of such excess principal amount shall be determined on the date such Permitted Refinancing Indebtedness is incurred. Notwithstanding any other provision of this Section 4.09, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values subsequent to the incurrence of such Indebtedness. The amount of any Indebtedness outstanding as of any date will be:
(1) the incurrence by accreted value of the Company and its Subsidiaries Indebtedness, in the case of Hedging Obligations any Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(3) in respect to long-term of Indebtedness of an Accounts Receivable Subsidiaryanother Person secured by a Lien on the assets of the specified Person, the lesser of:
(a) the Fair Market Value of such assets at the date of determination; and
(b) the amount of the Indebtedness of the other Person.
Appears in 1 contract
Samples: Indenture (Georgia Gulf Corp /De/)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, and the Guarantor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), and the Company and the Guarantor shall not issue any Disqualified Stock and shall not permit any of its their Restricted Subsidiaries to issue any shares of preferred stock; PROVIDED, HOWEVER, that stock unless the Company may incur Indebtedness if (i) the Fixed Charge Coverage Leverage 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 would have been at least (a) 2.25 not greater than 8.75 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, in each case 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 incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of the most recently ended fiscal quarter. So long as no Default shall have occurred and be continuing or would be caused thereby, the first paragraph of this covenant shall not prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(1) the incurrence by the Company and its Restricted Subsidiaries and the Guarantor and its Restricted Subsidiaries of Indebtedness under the Credit Facilities; provided that the aggregate principal amount of all Indebtedness of the Company and its Restricted Subsidiaries and the Guarantor and its Restricted Subsidiaries outstanding under all Credit Facilities after giving effect to such four-quarter period incurrence does not exceed an amount equal to $3.5 billion less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any of its Subsidiaries or the Guarantor or any of its Subsidiaries, as the case may be, in the case of an Asset Sale since the date of this Indenture to repay Indebtedness under a Credit Facility pursuant to Section 4.11;
(2) the incurrence by the Company and its Restricted Subsidiaries and the Guarantor and its Restricted Subsidiaries of Existing Indebtedness (iiother than the Credit Facilities); 61
(3) such the incurrence on the Issue Date by the Company and its Restricted Subsidiaries and the Guarantor and its Restricted Subsidiaries of Indebtedness is pari passu with or subordinated in right of payment to represented by the Notes, the Other Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notes. The foregoing limitations will not apply to related Guarantees;
(a4) the incurrence by the Company or any of its Restricted Subsidiaries or the Guarantor or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of creditfinancing all or any part of the purchase price or cost of construction or improvement (including, without limitation, the cost of design, development, construction, acquisition, transportation, installation, improvement, and migration) of Productive Assets of the Company or any extension, refinancing, renewal, replacement of its Restricted Subsidiaries or refunding thereofthe Guarantor or any of its Restricted Subsidiaries, in an aggregate principal amount at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 75 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(b5) the incurrence by the Company or any of its Restricted Subsidiaries or the Guarantor or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the Existing net proceeds of which are used to refund, refinance or replace, in whole or in part, Indebtedness (other than intercompany Indebtedness, ) that was permitted by this Indenture to be incurred under the first paragraph of this covenant or clauses (c2) the incurrence by the Company and its Subsidiaries or (3) of Indebtedness represented by the Notes and the Senior Notes, this paragraph;
(d6) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange for, or the proceeds Guarantor or any of which are used to extendits Restricted Subsidiaries, refinanceas the case may be, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries, or the Guarantor or any of its Restricted Subsidiaries, respectively; provided that except for the Mirror Note, this clause does not permit Indebtedness between the Company or any of its Restricted Subsidiaries, as creditor or debtor, as the case may be, and the Guarantor or any of its Restricted Subsidiaries, as debtor or creditor, as the case may be, unless otherwise permitted by the Indentures; provided, further, that:
(a) if the Company or the Guarantor is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes in the case of the Company, or the Guarantee of such Guarantor, in the case of the Guarantor; and
(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 Wholly Owned Restricted Subsidiary thereof or the Guarantor or a Wholly Owned Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Restricted Subsidiary thereof, or the Guarantor or a Wholly Owned Restricted Subsidiary thereof, shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or any of its Restricted Subsidiaries or the Guarantor or any of its Restricted Subsidiaries, respectively, as the case may be, that are Subsidiary Guarantors, was not permitted by this clause (f6); 62
(7) the incurrence by the Company or any of its Restricted Subsidiaries, or the Guarantor or any of its Restricted Subsidiaries, of Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging interest rate risk with respect to variable any floating rate Indebtedness that is permitted by the terms of the Indentures to be outstanding;
(8) the guarantee by the Company or the Guarantor of Indebtedness of the Company or a Restricted Subsidiary of the Company, or Indebtedness of the Guarantor or a Restricted Subsidiary of the Guarantor that was permitted to be incurred by another provision of this IndentureSection 4.10;
(9) the incurrence by the Company or any of its Restricted Subsidiaries, (g) or the Guarantor or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount at any time outstanding, not to exceed $10 million at 300 million;
(10) the incurrence by the Company or any one time outstandingof its Restricted Subsidiaries, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at or the Guarantor or any one time outstandingof its Restricted Subsidiaries, (i) purchase money of additional Indebtedness in an aggregate principal amount at any time outstanding, not to exceed $2 million at any one time outstanding, 200% of the net cash proceeds received by the Company from the sale of its Equity Interests (jother than Disqualified Stock) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on after the date of this Indenture and to the extent such net cash proceeds have not been applied to make Restricted Payments or to effect other transactions pursuant to Section 4.07 or to make Permitted Investments pursuant to clause (k6) of the definition thereof;
(11) the incurrence by accretion or amortization of original issue discount and the write up of Indebtedness in accordance with purchase accounting; and
(12) Indebtedness under the Mirror Note. For purposes of determining compliance with this Section 4.10, 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 (12) above, or is entitled to be incurred pursuant to the first paragraph of this covenant, the Company or the Guarantor, as the case may be, shall be permitted to classify and from time to time to reclassify such item of Indebtedness on the date of its Subsidiaries incurrence in any manner that complies with this covenant. For avoidance of Hedging Obligations with respect doubt, Indebtedness incurred pursuant to long-term a single agreement, instrument, program, facility or line of credit may be classified as Indebtedness arising in part under one of an Accounts Receivable Subsidiarythe clauses listed above, and in part under any one or more of the clauses listed above, to the extent that such Indebtedness satisfies the criteria for such clauses.
Appears in 1 contract
Samples: Indenture (Charter Communications Holdings Capital Corp)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock if (i) the Company's 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 is issued would have been at least (a) 2.25 2.00 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period and (ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity period. The provisions of the Notes. The foregoing limitations will first paragraph of this covenant shall not apply to the incurrence of any of the following items of Indebtedness (acollectively, "Permitted Debt"):
(i) the incurrence by the Company or any of its Subsidiaries of term Indebtedness, revolving credit Indebtedness and indebtedness under letters of creditcredit (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company thereunder) under any Credit Facility (and the Guarantee thereof by the Guarantors); provided that, and any extensionsubject to clause (xii) below, refinancing, renewal, replacement or refunding thereof, in an the aggregate principal amount of all Indebtedness and letters of credit outstanding at any one time outstanding under all Credit Facilities after giving effect to such incurrence, does not to exceed $25 million, 50.0 million less the aggregate amount of all permanent repayments from Net Proceeds of Asset Sales or as stated amortization of a term loan, if applicable, optional or mandatory, of the principal of any Indebtedness under a Credit Facility (or any such Permitted Refinancing Indebtedness) that have been applied to permanently reduce borrowings and commitments under any made since August 11, 1997; provided that such facilitydeduction will not exceed, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of businessaggregate, $25.0 million;
(b) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (cii) the incurrence by the Company and its Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company of Indebtedness represented by the 1997 Notes Notes and the Senior Notes, incurrence by the Guarantors of the subsidiary guarantees of the 1997 Notes and the Exchange Notes and the related Subsidiary Guarantees to be issued pursuant to the Registration Rights Agreement;
(div) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in exchange foreach 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 proceeds business of which are used the Company or such Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to extendrefund, refinance, renew, replace, refund refinance or defease, replace Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to this clause (biv), not to exceed $5.0 million at any time outstanding;
(c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1v) the principal amount incurrence by the Company or any of such its Subsidiaries of Permitted Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, Indebtedness;
(2vi) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to incurrence by the Company or greater than either (x) the remaining Weighted Average Life to Maturity any of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity its Subsidiaries of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Guarantors; 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 this Indenture, (ii) if a Subsidiary of the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of such Subsidiary's Subsidiary Guarantee and (iii)(A) any subsequent event or issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Subsidiary of the Company and (B) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Subsidiary of the Company that is a Guarantor shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be, that was not permitted by this clause (vi);
(vii) the issuance by a Subsidiary that is a Guarantor of preferred stock to the Company or to any of its Subsidiaries that are Guarantors; provided, however, that any subsequent event or issuance or transfer of any Equity Interests that results in the owner of such preferred stock ceasing to be the Company or one of its Subsidiaries that are Guarantors or any subsequent transfer of such preferred stock to a Person other than the Company or any of its Subsidiaries that are Guarantors, shall be deemed to be an issuance of preferred stock by such Subsidiary that was not permitted by this clause (fvii).
(viii) the incurrence by the Company or any of its Subsidiaries of Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging interest rate risk with respect to variable any floating rate Indebtedness that is permitted by the terms hereof to be outstanding;
(ix) Indebtedness arising from agreements of the Company or a Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred in connection with the disposition of any business, assets or a Subsidiary, other than the 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 Company or any Subsidiary (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (A)) and (B) the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including noncash proceeds (the fair market value of such noncash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Company and its Subsidiaries in connection with such disposition;
(x) the guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Subsidiary of the Company that was permitted to be incurred by another provision of this IndentureSection 4.09;
(xi) the incurrence of Indebtedness by one of the Company's Subsidiaries evidenced by the promissory notes (the "Eagle Rock Notes") issued and issuable under the certain Lease Agreement date April 19, 1986, as amended by a Memorandum of Agreement dated February 26, 1993, between one of the Company's Subsidiaries (gas successor in interest to DSD, Inc.) and 426 Eagle Rock Avenue Associates; or
(xii) the incurrenxx xx xxx Xxxxxxx xx additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (xii), not to exceed $10 million at 10.0 million; provided that such additional Indebtedness may be Senior Debt under any Credit Facility. For purposes of determining compliance with this covenant, in the event that an item of Indebtedness meets the criteria of more than one time outstanding, (h) Capital Lease Obligations of the categories of Permitted Debt described in an aggregate principal amount not to exceed $2 million at any one time outstanding, clauses (i) purchase money through (xii) above or is entitled to be incurred pursuant to the first paragraph of this covenant, the Company shall, in its sole discretion, classify such item of Indebtedness in any manner that complies with this Section 4.09. 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 aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date for purposes of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable SubsidiarySection 4.09.
Appears in 1 contract
Samples: Indenture (B&g Foods Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and the Company shall will not issue any Disqualified Stock and shall will not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock if (i) 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 is issued would have been at least (a) 2.25 2.0 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period and (ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity period. The provisions of the Notes. The foregoing limitations first paragraph of this covenant will not apply to the incurrence of any of the following items of Indebtedness (acollectively, "Permitted Debt"):
(i) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness represented by the 101/8% Senior Subordinated Notes due 2007 and the guarantees thereof, respectively;
(ii) the incurrence by the Company of Indebtedness and letters of credit pursuant to the New Credit Facility; provided that the aggregate principal amount of all such Indebtedness (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company thereunder) outstanding under the New Credit Facility after giving effect to such incurrence does not exceed the sum of $225.0 million plus the Borrowing Base;
(iii) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(iv) the incurrence by the Company and the Subsidiary Guarantors of Indebtedness represented by the Notes and the Note Guarantees, respectively;
(v) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the purpose of creditfinancing all or any part of the purchase price or cost of construction or improvement of property, and plant or equipment used in the business of the Company or such Restricted Subsidiary (whether through the direct purchase of assets or the Capital Stock of any extension, refinancing, renewal, replacement or refunding thereofPerson owning such Assets), in an aggregate principal amount at any one time outstanding not to exceed $25 125.0 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, ;
(bvi) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in connection with the Existing Indebtedness, (c) acquisition of assets or a new Restricted Subsidiary; provided that such Indebtedness was incurred by the incurrence prior owner of such assets or such Restricted Subsidiary prior to such acquisition by the Company and or one of its Subsidiaries of Indebtedness represented and was not incurred in connection with, or in contemplation of, such acquisition by the Notes and Company or one of it Subsidiaries; provided further that the Senior Notesprincipal amount (or accreted value, as applicable) of such Indebtedness, together with any other outstanding Indebtedness incurred pursuant to this clause (dvi), does not exceed $5.0 million;
(vii) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to extendrefund, refinance, renew, replace, refund refinance or defease, replace Indebtedness incurred pursuant that was permitted by this Indenture to the immediately preceding paragraph or pursuant to clause be incurred;
(b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1viii) the principal amount incurrence by the Company or any of such Refinancing Indebtedness shall not exceed the principal amount its Restricted Subsidiaries of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries Restricted Subsidiaries; provided, however, that are (i) if the Company is the obligor on such Indebtedness and the payee is not a Subsidiary GuarantorsGuarantor, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes and (fii)(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 a Wholly Owned Restricted Subsidiary and (B) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Restricted Subsidiary 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;
(ix) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging currency risk or interest rate risk with respect to variable any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding;
(x) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date another provision of this Indenture and covenant;
(kxi) the incurrence by the Company and its Company's Unrestricted Subsidiaries of Hedging Obligations Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Company;
(xii) Asset Sales in the form of Receivables Transactions; 40 42 (xiii) Indebtedness incurred by the Company or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to longletters of credit issued in the ordinary course of business, including without limitation to letters of credit in respect to workers' compensation claims or self-term insurance, or other Indebtedness with respect to reimbursement type obligations regarding workers' compensation claims; provided, however, that upon the drawing of an Accounts Receivable Subsidiary.such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, if (i) 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 is issued would have been at least (a) 2.25 2.0 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 had been issued, as the case may be, at the beginning of such four-quarter period period. The first paragraph of this Section 4.09 shall not prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(i) the incurrence by the Company of additional Indebtedness and letters of credit under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (i) (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 $600.0 million;
(ii) such the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company of Indebtedness is pari passu with or subordinated in right represented by the Notes to be issued on the date of payment this Indenture and the Exchange Notes to be issued pursuant to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notes. The foregoing limitations will not apply to Registration Rights Agreement;
(aiv) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of creditfinancing all or any part of the purchase price or cost of construction or improvement of property, and any extension, refinancing, renewal, replacement plant or refunding thereofequipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount at amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any one time outstanding Indebtedness incurred pursuant to this clause (iv), not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 100.0 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(bv) the incurrence by the Company or any of its Restricted Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Permitted Refinancing Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the net proceeds of which are used to extendrefund, refinance, renew, replace, refund refinance or defease, replace Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (cother than intercompany Indebtedness) or (g) of that was permitted by this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (f) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted Indenture to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) under the incurrence first paragraph of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable Subsidiary.this
Appears in 1 contract
Samples: Indenture (Office Depot Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), Indebtedness) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness if (including Acquired Indebtedness) or issue shares of Disqualified Stock if:
(i) 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 is issued would have been at least (a) 2.25 1.5 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period and period; and
(ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that of such Indebtedness is equal to or greater than the remaining Weighted Average Life to Maturity of the Notes, provided that this clause (ii) shall not apply in the case of Acquired Indebtedness. The foregoing limitations will provisions of the first paragraph of this Section 4.09 shall not apply to (a) the incurrence by the Company or of any of its Subsidiaries the following items of revolving credit Indebtedness and letters of credit(collectively, and any extension, refinancing, renewal, replacement or refunding thereof, in an aggregate principal amount at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, "Permitted Indebtedness"):
(b) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (ci) the incurrence by the Company and its Subsidiaries of the Existing Indebtedness other than the Notes and the Series C Senior Notes and the guarantees thereof;
(ii) the incurrence by the Company on the date hereof of Indebtedness represented by the Notes;
(iii) the issuance by the Company of the Exchange Notes.
(iv) the incurrence by MFOC of Indebtedness represented by the Series C Senior Notes and the Exchange MFOC Senior Notes, and the guarantee thereof by MFOC's Subsidiaries, and any other Indebtedness of MFOC or its Subsidiaries permitted under the MFOC Indenture and the guarantee thereof by MFOC's Subsidiaries permitted under the MFOC Indenture;
(dv) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $5.0 million at any time outstanding;
(vi) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extendrefund, refinance, renew, replace, refund refinance or defease, replace Indebtedness incurred pursuant that was permitted by the Indenture to the immediately preceding paragraph or pursuant to clause be incurred;
(b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1vii) the principal amount incurrence by the Company or any of such Refinancing Indebtedness shall not exceed the principal amount its Subsidiaries of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries Subsidiaries, provided that are (A) 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 (B)(1) 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 Subsidiary Guarantorsand (2) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(fviii) the incurrence of Indebtedness in connection with one or more standby letters of credit, guarantees, performance or surety bonds or other reimbursement obligations, in each case, issued in the ordinary course of business and not in connection with the borrowing of money or the obtaining of advances or credit (other than (A) advances or credit on open account, includible in current liabilities, for goods and services in the ordinary course of business and on terms and conditions customary in a Permitted Business and (B) the extension of credit represented by such letter of credit, guarantee, bond or other obligations itself), provided that any draw under or call upon any of the foregoing is repaid in full within 45 days, and provided further that the aggregate amount of all Indebtedness incurred pursuant to this clause (viii) shall not exceed $5.0 million at any time outstanding;
(ix) the incurrence of Indebtedness arising from agreements of the Company or a Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or Subsidiary (other than guarantees of Indebtedness incurred by any Person acquiring all or a portion of such business, assets or Subsidiary for the purpose of financing such acquisition), provided that the maximum aggregate liability of all such Indebtedness shall at no time exceed 50% of the gross proceeds actually received by the Company of Hedging Obligations to protect or such Subsidiary in connection with such disposition;
(x) the guarantee by the Company against interest rate risk with respect to variable rate or any Subsidiary of Indebtedness of the Company or any Subsidiary that was permitted to be incurred by another provision of this Indenturecovenant; For purposes of determining compliance with this Section 4.09, (g) additional in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, clauses (i) purchase money through (x) above or is entitled to be incurred pursuant to the first paragraph of this Section 4.09, the Company shall, in its sole discretion, classify such item of Indebtedness in any manner that complies with this Section 4.09 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 hereof. Accrual of interest and the accretion of accreted value shall not be deemed to be an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date for purposes of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable SubsidiarySection 4.09.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCUR"“incur”) any Indebtedness (including Acquired Debt), and the Company shall will not issue any Disqualified Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and the Guarantors may incur Indebtedness (including Acquired Debt) or issue preferred stock, if (i) the Fixed Charge Coverage Ratio for the Company's Company 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 (a) 2.25 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, in each case determined on a pro forma basis (including a pro forma application of the net proceeds therefrom) therefrom and giving effect to Pro Forma Cost Savings), 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 period.
(b) The provisions of Section 4.09(a) hereof will not prohibit any of the following items of Indebtedness (collectively, “Permitted Debt”):
(1) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness and letters of credit (iiincluding guarantees or other credit support in respect thereof) such under the Senior Secured Credit Facility in an aggregate amount at any one time outstanding (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 $235.6 million less the aggregate amount of Net Proceeds of Asset Sales applied by the Company or any of its Restricted Subsidiaries since the Issue Date to repay the Indebtedness is pari passu with or subordinated in right under the Senior Secured Credit Facility pursuant to Section 4.10(b)(1);
(2) Existing Indebtedness;
(3) the incurrence by the Company and the Guarantors of payment to Indebtedness represented by the Notes and has a Weighted Average Life the related Note Guarantees to Maturity that is greater than be issued on the remaining Weighted Average Life Issue Date and the Exchange Notes to Maturity of be issued pursuant to the Notes. The foregoing limitations will not apply to Registration Rights Agreement;
(a4) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of creditfinancing all or any part of the purchase price or cost of design, and construction, installation or improvement of property, plant or equipment used in the business of the Company or any extension, refinancing, renewal, replacement or refunding thereofof its Restricted Subsidiaries, in an aggregate principal amount at amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any one time outstanding Indebtedness incurred pursuant to this clause (4), not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 20.0 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(b5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the Existing net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a) hereof or clauses (2), (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes3), (d4), (5) or (14) of this Section 4.09(b);
(6) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries; provided, however, that:
(A) if the Company or any Guarantor is the obligor on such Indebtedness and the payee is not the Company or a Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes and the Note Guarantees; and
(B) any (i) 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, or (ii) 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 an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);
(7) the issuance by any of the Company Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of shares of preferred stock; provided, however, that are any (a) 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 Guarantorsof the Company, or (fb) 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 an issuance of such preferred stock by such Restricted Subsidiary that was 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;
(9) the guarantee by the Company or any of the 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 or pari passu with the Notes, then the Guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(10) the incurrence by the Company or any of Hedging Obligations to protect its Restricted Subsidiaries of Indebtedness (including guarantees and supporting letters of credit) in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, bids, performance and surety bonds in the ordinary course of business;
(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 drawn against interest rate risk insufficient funds, so long as such Indebtedness is covered within five Business Days;
(12) indemnification, adjustment or purchase price or similar obligations of the Company or any of its Restricted Subsidiaries incurred in connection with respect to variable rate the acquisition or disposition of assets (including Equity Interests in Subsidiaries), other than any such Indebtedness permitted to be incurred for the purpose of financing any portion of the purchase price of such assets;
(13) the incurrence by this Indenture, the Company or any of its Restricted Subsidiaries of Indebtedness consisting of financing of insurance premiums; and
(g14) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (14), not to exceed $10 million at 20.0 million.
(c) The Company will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Note Guarantee on substantially identical terms; provided, however, that no Indebtedness shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company solely by virtue of being unsecured or by virtue of being secured on a first or junior Lien basis.
(d) 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 time outstandingof the categories of Permitted Debt described in clauses (1) through (14) of Section 4.09(b) hereof, (h) Capital Lease Obligations in an aggregate principal amount not or is entitled to exceed $2 million at any one time outstandingbe incurred pursuant to Section 4.09(a), (i) purchase money Indebtedness in an aggregate principal amount not the Company will be permitted to exceed $2 million at any one time outstanding, (j) the incurrence classify such item of Indebtedness pursuant to the Registration Rights Agreement as in effect 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, and such item of Indebtedness will be treated as having been incurred pursuant to such category, provided that Indebtedness under the Senior Secured Credit Facility outstanding on the date on which Notes are first issued and authenticated under this Indenture will initially be deemed to have been incurred on such date in reliance on the exception provided by clause (1) of the definition of Permitted Debt. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09; provided, in each such case, that the amount of any such accrual, accretion or payment is included in Fixed Charges of the Company as accrued. Notwithstanding any other provision of this Section 4.09, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values, or as a result of other revaluations of debt required by GAAP that do not involve additional cash borrowings.
(ke) The amount of any Indebtedness outstanding as of any date will be:
(1) the incurrence by accreted value of the Company and its Subsidiaries Indebtedness, in the case of Hedging Obligations any Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(3) in respect to long-term of Indebtedness of an Accounts Receivable Subsidiaryanother Person secured by a Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date of determination; and
(B) the amount of the Indebtedness of the other Person.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and the Company shall not issue any Disqualified Stock and shall 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 (including Acquired Debt) and the Company's Restricted Subsidiaries may issue shares of preferred stock if (i) 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 preferred stock is issued would have been at least (a) 2.25 2.0 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 preferred stock had been issued, as the case may be, at the beginning of such four-quarter period and (ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity period. The provisions of the Notes. The foregoing limitations first paragraph of this covenant will not apply to the incurrence of any of the following:
(a1) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness under the Credit Facilities pursuant to this clause (1) in an aggregate principal amount not to exceed $115.0 million at any one time outstanding;
(2) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness represented by the Notes and the Note Guarantees to be issued in this offering, the Exchange Notes or any new notes issued in exchange for the Senior Subordinated Notes or Additional Notes issued hereunder, PROVIDED, any new notes are issued pursuant to arrangements similar to those described in the Registration Rights Agreement;
(4) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations in an aggregate principal amount not to exceed $50.0 million at any time outstanding;
(5) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, Acquired Debt in an aggregate principal amount at any one time outstanding not to exceed $25 25.0 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, ; PROVIDED that such Indebtedness was incurred by the proceeds prior owner of such Indebtedness are assets or such Restricted Subsidiary prior to such acquisition by the Company or one of its Restricted Subsidiaries and was not used for acquisitions incurred in connection with, or other expenditures not in contemplation of, such acquisition by the ordinary course Company or one of business, its Restricted Subsidiaries;
(b6) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the Existing Indebtednessnet proceeds of which are used to refund, refinance or replace Indebtedness that was permitted by this Indenture to be incurred;
(c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, (d7) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, Restricted Subsidiaries;
(f) 8) the incurrence by the Company and its Restricted Subsidiaries of Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging interest rate risk with respect to variable any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding;
(9) the guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable Subsidiary.;
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and that the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified 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 is issued would have been at least 2.5 to 1, 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 had been issued, as the case may be, at the beginning of such four-quarter period. The foregoing provisions shall not apply to:
(i) the incurrence by the Company of term Indebtedness under the New Credit Agreement or any one or more successor or additional bank facilities and/or Attributable Debt in respect of sale and leaseback transactions the net proceeds of which were applied to repay any such term Indebtedness in an aggregate principal amount at any time outstanding not to exceed an amount equal to $170.0 million less the aggregate amount of all repayments, optional or mandatory, of the principal of any such term Indebtedness (other than repayments that are immediately reborrowed and other than repayments made with the proceeds of sale and leaseback transactions pursuant to this clause (i)) that have been made since the Issue Date;
(a) the incurrence by the Company of revolving Indebtedness under the New Credit Agreement (or any one or more successor or additional bank facilities) and letters of credit (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company thereunder) and (b) the incurrence by the Receivables Subsidiary of Non-Recourse Debt under the Receivables Facility; provided, however, that, the aggregate principal amount at any time outstanding pursuant to subclauses (a) and (b) of this clause (ii) (excluding intercompany Indebtedness of the Receivables Subsidiary permitted by clause (viii) below) shall not exceed an amount equal to $155.0 million less the aggregate amount of all Net Proceeds of Asset Sales applied to permanently reduce the commitments with respect to such revolving Indebtedness pursuant to the provisions of Section 4.10 hereof;
(iii) the incurrence by the Company and its Subsidiaries of the Existing Indebtedness;
(iv) the incurrence by the Company of Indebtedness represented by the Notes and the Senior Subordinated Notes;
(v) the incurrence by the Company of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company, in an aggregate principal amount not to exceed $25.0 million at any time outstanding;
(vi) the incurrence by any of the Company's Subsidiaries of Indebtedness in connection with the acquisition of assets or a new Subsidiary; provided that (1) such Indebtedness was incurred by the prior owner of such assets or such Subsidiary prior to such acquisition and was not incurred in connection with, or in contemplation of, such acquisition or is in the nature of an earnout payment or holdback payment incurred by one of the Company's Subsidiaries in connection with the acquisition of assets or a new Subsidiary, (2) the principal amount (or accreted value, as applicable) of such Indebtedness, together with any other outstanding Indebtedness incurred pursuant to this clause (vi), does not exceed $10.0 million and (3) 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 would have been at least (a) 2.25 2.5 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 at the beginning of such four-quarter period and period;
(ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notes. The foregoing limitations will not apply to (avii) the incurrence by the Company or any of its Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, in an aggregate principal amount at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, (b) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued Permitted Refinancing Debt in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, refund defease or defeaserefund, Indebtedness incurred pursuant that was permitted by this Indenture to the immediately preceding paragraph or pursuant to clause be incurred;
(b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1viii) the principal amount incurrence by the Company or any of such Refinancing Indebtedness shall not exceed the principal amount its Subsidiaries of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries Subsidiaries, and any intercompany Indebtedness arising in connection with a Receivables Facility; provided, however, that are (1) if the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinate to the payment in full of all Obligations with respect to the Notes and (2)(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 a Subsidiary Guarantorsand (B) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(fix) the incurrence by the Company of Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging interest rate risk with respect to variable any floating rate Indebtedness that is permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date terms of this Indenture and to be outstanding or for the purpose of hedging against currency exchange rate fluctuations;
(kx) the incurrence Guarantees by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of Subsidiaries, and Guarantees by Subsidiaries of Indebtedness of the Company, which Indebtedness is, in each case, permitted to be incurred under this covenant other than Indebtedness permitted to be incurred pursuant to subclause (b) of clause (ii) above; and
(xi) the incurrence by the Company or any of its Subsidiaries of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an Accounts Receivable Subsidiaryaggregate principal amount (or accreted value, as applicable) at any time outstanding not to exceed $25.0 million.
Appears in 1 contract
Samples: Indenture (Printpack Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Until such time as the Company meets the Rating Condition, the Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), and the Company shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, if (i) 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 (taken as one accounting period) or such Disqualified Stock or preferred stock is issued would have been at least (a) 2.25 2.0 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 preferred stock or Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period and (ii) such Indebtedness is pari passu with or subordinated in right period. The first paragraph of payment to this covenant shall not prohibit the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity incurrence of any of the Notes. The foregoing limitations will not apply to following items of Indebtedness (collectively, "Permitted Indebtedness"):
(a) the incurrence by the Company or any of its Subsidiaries of revolving credit additional Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, credit under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (a)(with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) not to exceed $25 400 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, ;
(b) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of the Existing Indebtedness;
(c) the incurrence by the Company of:
(1) Indebtedness represented by the Notes and the Exchange Notes and the related Subsidiary Guarantees, if any, to be issued pursuant to the Registration Rights Agreement; and
(2) Indebtedness represented by the Convertible Senior Notes, ;
(d) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all 49 55 Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (d), not to exceed $15.0 million at any time outstanding;
(e) Indebtedness of a Restricted Subsidiary of the Company incurred and outstanding on or prior to the date on which such Restricted Subsidiary was acquired by the Company or another Restricted Subsidiary (other than Indebtedness incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company or other Restricted Subsidiary); provided, however, that on the date of such acquisition, after giving pro forma effect thereto and any related transactions as if the same had occurred at the beginning of the applicable four-quarter period, the Company would be permitted to incur at least $1.00 of additional indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of this Section 4.09;
(f) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extendrefund, refinance, renew, replace, refund refinance or defease, replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred pursuant to under the immediately preceding first paragraph of this covenant or pursuant to clause clauses (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"d), (e) or (k) of this paragraph;
(g) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries Restricted Subsidiaries; provided, however, that:
(i) if the Company or any Guarantor is the obligor on such Indebtedness, 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 Guarantor; and
(1) any subsequent issuance or transfer of Equity Interests that are results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary Guarantorsof the Company and (2) 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 shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (fg);
(h) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging interest rate risk with respect to variable any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding or for the purpose of fixing or hedging currency exchange rate risk with respect to any currency exchanges;
(i) the guarantee by the Company or any of the Restricted Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, Section 4.09;
(j) the accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock shall not be deemed to be an incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date or an issuance of Disqualified Stock for purposes of this Indenture and Section 4.09; provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued interest or dividends; and
(k) the incurrence by the Company and or any of its Restricted Subsidiaries of Hedging Obligations additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (k), not to exceed $20 million. For purposes of determining compliance with respect this Section 4.09, if an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (a) through (k) above, or is entitled to long-term be incurred pursuant to the first paragraph of this Section 4.09, the Company shall be permitted to classify such item of Indebtedness on the date of its incurrence, in any manner that complies with this Section 4.09 and an Accounts Receivable Subsidiaryitem of Indebtedness may be divided and classified in more than one of the types of Indebtedness described above. Indebtedness under Credit Facilities outstanding on the date on which Notes are first issued and authenticated under this Indenture shall be deemed to have been incurred on such date in reliance on the exception provided by clause (a) of the definition of Permitted Indebtedness.
Appears in 1 contract
Samples: Indenture (GPPD Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company or any of its Subsidiaries may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock and the Company's Subsidiaries may issue shares of preferred stock if (i) 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 preferred stock is issued would have been at least (a) 2.25 2.0 to 11.0, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 incurred, or the Disqualified Stock or preferred stock had been issued, as the case may be, at the beginning of such four-quarter period period. The foregoing provisions shall not apply to:
(i) the incurrence by the Company and its Subsidiaries of Indebtedness and letters of credit pursuant to the New Credit Facility (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) in an aggregate principal amount not to exceed $372.0 million, less the aggregate amount of all proceeds of Assets Sales that have been applied since the date hereof to permanently reduce the outstanding amount of such Indebtedness pursuant to Section 4.10;
(ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notes. The foregoing limitations will not apply to Existing Indebtedness;
(aiii) the incurrence by the Company or any of its Subsidiaries of revolving credit Permitted Refinancing Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, in an aggregate principal amount at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, (b) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, refund defease or defeaserefund, Indebtedness incurred pursuant that is permitted by this Indenture to the immediately preceding paragraph or pursuant to clause be incurred; 42 49
(b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1iv) the principal amount incurrence by the Company or any of such Refinancing Indebtedness shall not exceed the principal amount its Subsidiaries of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries Subsidiaries; provided, however, that are (i) if the Company is the obligor of such Indebtedness, such Indebtedness is expressly subordinate to the payment in full 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 a Subsidiary Guarantorsand (B) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Subsidiary shall be deemed, (f) the in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(v) Indebtedness under Guarantees in respect of Hedging Obligations to protect obligations of joint ventures of the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, (g) additional Indebtedness or any of its Subsidiaries in an aggregate principal amount not to exceed $10 20 million at any one time;
(A) Indebtedness incurred to finance the purchase or construction of property, plant or equipment which will be treated as Consolidated Capital Expenditures of the Company so long as such Indebtedness is secured by a Lien on the property, plant or equipment so purchased or constructed and such Indebtedness does not exceed the value of such property, plant or equipment so purchased or constructed and such Lien shall not extend to or cover other assets of the Company or any of its Subsidiaries other than the property, plant or equipment so purchased or constructed and the real property, if any, on which the property so constructed or so purchased, is situated and the accessions, attachments, replacements and improvements thereto or (B) Indebtedness incurred in connection with any lease financing transaction in conjunction with the acquisition of new property; provided that such lease financing transaction is consummated within 60 days of such acquisition (whether such lease will be treated as an operating or capital lease in accordance with GAAP) and the aggregate of the Indebtedness incurred pursuant to clauses (A) and (B) does not exceed $15 million during any fiscal year (such amount is referred to as the "Maximum Amount"); provided that the Maximum Amount for each year shall be increased by the excess, if any, of (a) $30 million over (b) Consolidated Capital Expenditures for the immediately preceding two years;
(vii) Indebtedness incurred in connection with any sale and leaseback transaction, provided that the aggregate of the Indebtedness incurred pursuant to this clause (vii) shall not exceed $30.0 million;
(viii) obligations incurred in the ordinary course of business under (A) trade letters of credit which are to be repaid in full not more than one year after the date on which such Indebtedness is originally incurred to finance the purchase of goods by the Company or a Subsidiary of the Company; (B) standby letters of credit issued for the purpose of supporting (1) workers' compensation liabilities of the Company or any of its Subsidiaries as required by law, (2) obligations with respect to leases of the Company or any of its Subsidiaries, (3) performance, payment, deposit or surety obligations of the Company or any of its Subsidiaries or (4) environmental liabilities of the Company or any of its Subsidiaries as required by law, not exceeding an aggregate amount of $15 million at any one time outstandingoutstanding in addition to any amounts required by law; (C) performance bonds and surety bonds, and refinancings thereof; and (hD) Capital Lease Obligations Guarantees of Indebtedness incurred in the ordinary course of business of suppliers, licensees, franchisees, or customers in an aggregate principal amount not to exceed $2 million at 5 million;
(ix) Indebtedness to repurchase shares, or cancel options to purchase shares, of the Company's common stock held by employees of the Company (other than any one time outstanding, (imember of the BLS Group) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at or any one time outstanding, (j) the incurrence of Indebtedness its Subsidiaries pursuant to the Registration Rights Agreement as in effect on forms of agreements under which such employees purchase shares of the date of this Indenture and Company's common stock;
(kx) the incurrence by the Company and or any of its Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk with respect to long-term any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding; and
(xi) the incurrence by the Company or any of its Subsidiaries of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an Accounts Receivable Subsidiaryaggregate principal amount (or accreted value, as applicable) at any time outstanding not to exceed $25 million. Notwithstanding the foregoing, the accretion or amortization of original issue discount under any Indebtedness, the payment of interest in additional Indebtedness or the accretion of the liquidation preference of Disqualified Stock or preferred stock, shall not be deemed an incurrence of Indebtedness, Disqualified Stock or preferred stock; provided, however, that such accretion or amortization or payment of interest is included in Fixed Charges.
Appears in 1 contract
Samples: Indenture (K&f Industries Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and the Company shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness and may permit a Restricted Subsidiary to incur Indebtedness if (i) 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 would have been at least (a) 2.25 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 at the beginning time of such four-quarter period incurrence and (ii) such Indebtedness is pari passu with or subordinated in right of payment after giving effect thereto the Leverage Ratio would be less than 6.5 to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notes1.0. The foregoing limitations will shall not apply to to:
(a1) the incurrence by the Company or any Restricted Subsidiary of its Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, Senior Bank Debt in an aggregate principal amount not to exceed $100.0 million at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, outstanding;
(b2) the incurrence issuance by the Company or any of its Restricted Subsidiaries of the Existing Indebtedness, Subsidiary Guarantees;
(c3) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness represented the Existing Indebtedness;
(4) the issuance by the Notes and Company of the Senior Notes, ;
(d5) the incurrence by the Company or any of and its Restricted Subsidiaries of Capital Lease Obligations and/or additional Indebtedness constituting purchase money obligations up to an aggregate of $5.0 million at any one time outstanding, provided that the Liens securing such Indebtedness constitute Permitted Liens;
(6) the incurrence of Indebtedness between (i) the Company and its Restricted Subsidiaries and (ii) the Restricted Subsidiaries;
(7) 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 of the Indenture to be outstanding;
(8) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness arising out of letters of credit, performance bonds, surety bonds and bankers' acceptances incurred in the ordinary course of business up to an aggregate of $5.0 million at any one time outstanding;
(9) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness consisting of guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock; and
(10) the incurrence by the Company and its Restricted Subsidiaries of Refinancing Indebtedness issued in exchange for, or the proceeds of which are used to repay, redeem, defease, extend, refinance, renew, replace, refund replace or defeaserefund, Indebtedness referred to in clauses (2) through (5) above, and this clause (10) or that was otherwise permitted to be incurred pursuant to the immediately preceding test set forth in the first paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (f) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable SubsidiarySection 4.8.
Appears in 1 contract
Samples: First Supplemental Indenture (Iron Mountain Inc/Pa)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCUR"“incur,” with “incurrence” having a correlative meaning) any Indebtedness (including Acquired Debt), and the Company shall will not issue any Disqualified Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) and issue Disqualified Stock, and Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) and issue preferred stock, 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 preferred stock is issued, as the case may be, would have been at least (a) 2.25 to 11.0, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 preferred stock had been issued, as the case may be, at the beginning of such four-quarter period period.
(b) Notwithstanding the foregoing, Section 10.11(a) will not prohibit the incurrence of any of the following (the items of Indebtedness described below in this Section 10.11(b) being referred to collectively as “Permitted Debt”):
(i) the incurrence by the Company and any Restricted Subsidiary of Indebtedness and letters of credit under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (i) (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 the greater of (x) $1.1 billion and (y) 20% of Adjusted Consolidated Net Tangible Assets, determined as of the date of the incurrence of such Indebtedness after giving pro forma effect to such incurrence and the application of the proceeds therefrom;
(ii) such the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company and the Guarantors of Indebtedness is pari passu with or subordinated in right of payment to represented by the Notes and has a Weighted Average Life to Maturity that is greater than or the remaining Weighted Average Life to Maturity Guarantees of the Notes. The foregoing limitations will not apply , to be incurred by the Company or any of the Guarantors on the Issue Date of the Notes;
(aiv) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of creditfinancing all or any part of the purchase price or cost of design, and construction, installation or improvement of property, plant or equipment used in the business of the Company or any extension, refinancing, renewal, replacement or refunding thereofof its Restricted Subsidiaries, in an aggregate principal amount at amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any one time outstanding Indebtedness incurred pursuant to this clause (iv), not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 50.0 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(bv) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the Existing net proceeds of which are used to refund, refinance, replace, defease or discharge Indebtedness (other than intercompany Indebtedness) or Disqualified Stock of the Company, or Indebtedness (other than intercompany Indebtedness) or preferred stock of a Restricted Subsidiary, in each case that was permitted by this Indenture to be incurred or issued under Section 10.11(a) or clause (ii), (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notesiii), (div), (v) or (x) of this Section 10.11(b); 49 Fourteenth Supplemental Indenture
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries; provided, however, that (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 a Restricted Subsidiary and (B) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi);
(vii) 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 are results in any such preferred stock being held by a Person other than the Company or a Restricted Subsidiary; 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, will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary Guarantorsthat was not permitted by this clause (vii);
(viii) the incurrence of obligations of the Company or a Restricted Subsidiary pursuant to Interest Rate and Currency Xxxxxx, in each case entered into in the ordinary course of business for the purpose of limiting risks that arise in the ordinary course of business of the Company and its Restricted Subsidiaries;
(fix) the guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Restricted Subsidiary that was permitted to be incurred by another provision of this covenant; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(x) Permitted Acquisition Indebtedness;
(xi) the incurrence by the Company or any Restricted Subsidiary of Hedging Obligations to protect Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within five Business Days;
(xii) Indebtedness consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company against interest rate risk and the Restricted Subsidiaries;
(xiii) the incurrence by the Company or any Restricted Subsidiary of Indebtedness arising from agreements of the Company or any of its 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 Capital Stock of a Subsidiary, provided that the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the Company and its Restricted Subsidiaries in connection with such disposition; 50 Fourteenth Supplemental Indenture
(xiv) the incurrence by the Company or any Restricted Subsidiary of Indebtedness arising from Guarantees of Indebtedness of joint ventures at any time outstanding not to variable rate exceed the greater of $50.0 million and 1.0% of Adjusted Consolidated Net Tangible Assets determined as of the date of incurrence of such Indebtedness permitted after giving pro forma effect to be incurred such incurrence and the application of proceeds thereof; and
(xv) the incurrence by this Indenture, (g) additional the Company or any of its Restricted Subsidiaries of Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding(or accreted value, as applicable) that, when taken together with all other Indebtedness of the Company outstanding on the date of such incurrence (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, other than Indebtedness permitted by clauses (i) purchase money through (xiv) above or Section 10.11(a)) does not exceed the greater of (x) 2.5% of Adjusted Consolidated Net Tangible Assets determined as of the date of incurrence of such Indebtedness and (y) $125.0 million.
(c) For purposes of determining compliance with this Section 10.11, 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 (i) through (xv) of Section 10.11(b), or is entitled to be incurred pursuant to Section 10.11(a), the Company will be permitted to divide and classify such item of Indebtedness on the date of its incurrence, or later divide and reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 10.11. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in an aggregate principal amount the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will be deemed not to exceed $2 million at be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this covenant; provided, in each such case, that the amount of any one time outstandingsuch accrual, accretion or payment is included in Fixed Charges of the Company as accrued.
(jd) For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness pursuant and issuance of preferred stock, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the Registration Rights Agreement as applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. Notwithstanding any other provision of this Indenture and (k) Section 10.11, the incurrence by maximum amount of Indebtedness that the Company and its Subsidiaries may incur pursuant to this Section 10.11 shall not be deemed to be exceeded solely as a result of Hedging Obligations with respect fluctuations in the exchange rate of currencies. The principal amount of any Permitted Refinancing Indebtedness incurred to long-term refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Permitted Refinancing Indebtedness is denominated that is in effect on the date of an Accounts Receivable Subsidiary.such refinancing. 51 Fourteenth Supplemental Indenture
Appears in 1 contract
Samples: Supplemental Indenture (Plains Exploration & Production Co)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty Guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCUR"“incur”; with “incurrence” having a correlative meaning) any Indebtedness (including Acquired Debt), and the Company shall will not issue any Disqualified Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) and issue Disqualified Stock, and its Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) and issue preferred stock, 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, would have been at least (a) 2.25 2.0 to 11.0, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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, at the beginning of such four-quarter period and period.
(iib) such Indebtedness is pari passu with or subordinated in right The provisions of payment to Section 4.09(a) hereof will not prohibit the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity incurrence of any of the Notes. The foregoing limitations will not apply to following items of Indebtedness or issuances of Disqualified Stock or preferred stock, as applicable (acollectively, “Permitted Debt”):
(1) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit additional Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, credit under Credit Facilities 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 the greater of (a) $25 million, less 1.05 billion and (b) $250.0 million plus 35.0% of the amount Total Assets of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds Company determined on the date of such incurrence;
(2) the incurrence by the Company or its Restricted Subsidiaries of Existing Indebtedness;
(3) the incurrence by the Issuers and the Guarantors of Indebtedness are not used for acquisitions or other expenditures not in represented by (a) the ordinary course of business, Notes and the related Note Guarantees to be issued on the Issue Date and (b) the Exchange Notes and the related Note Guarantees to be issued pursuant to the Registration Rights Agreement;
(4) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the Notes purpose of financing all or any part of the purchase price or cost of design, construction, installation 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 extend, renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (4) at any time; provided that, immediately after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (4) and then outstanding does not exceed the Senior Notes, greater of (da) $75.0 million and (b) 3.25% of the Total Assets of the Company;
(5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to extend, renew, refund, refinance, renew, replace, refund or defease, discharge or otherwise retire for value, any Indebtedness (other than intercompany Indebtedness) or Disqualified Stock of the Company, or Indebtedness (other than intercompany Indebtedness) or preferred stock of any Restricted Subsidiary, in each case that was permitted by this Indenture to be incurred pursuant to the immediately preceding paragraph under Section 4.09(a) hereof or pursuant to clause (b2), (c3), (4), (13), (14) or (g15) of this paragraph Section 4.09(b) or this clause ("REFINANCING INDEBTEDNESS"5); PROVIDED, HOWEVER, that ;
(16) the principal amount incurrence by the Company or any of such Refinancing Indebtedness shall not exceed the principal amount its Restricted Subsidiaries of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries; provided, however, that:
(A) if the Company or any Guarantor is the obligor on such Indebtedness and the payee is not the Company or a Guarantor, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor; 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 and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary, will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (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 are results in any such preferred stock being held by a Person other than the Company or a Restricted Subsidiary; and
(B) any sale or other transfer of any such preferred stock to a Person that is neither the Company nor a Restricted Subsidiary, will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary Guarantorsthat was 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 by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary to the extent that the guaranteed Indebtedness was permitted to be incurred by another provision of this Section 4.09; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the Guarantee must be subordinated or pari passu, as applicable, to the same extent as the Indebtedness Guaranteed;
(f10) the incurrence by the Company or any Restricted Subsidiary of Hedging Obligations to protect Indebtedness consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company against interest rate risk and its Restricted Subsidiaries;
(11) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to variable rate letters of credit; provided that, upon the drawing of such letters of credit, such obligations are reimbursed within 30 days following such drawing;
(12) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness permitted of any Unrestricted Subsidiary or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner or member of, or owner of an Equity Interest in, such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness; provided that, immediately after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (12) and then outstanding does not exceed $25.0 million;
(13) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Acquisition Indebtedness;
(14) the incurrence by any Foreign Subsidiary of Indebtedness that, in the aggregate together with all other Indebtedness of all Foreign Subsidiaries (including all Permitted Refinancing Indebtedness incurred to extend, renew, refund, refinance, replace, defease, discharge or otherwise retire for value any Indebtedness incurred pursuant to this clause (14)), does not exceed $50.0 million; and
(15) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness and the issuance by the Company of any Disqualified Stock, provided that, immediately after giving effect to any such incurrence or issuance, the amount of all such Indebtedness and Disqualified Stock incurred or issued pursuant to this clause (15) and then outstanding (including all Indebtedness and Disqualified Stock incurred or issued to Refinance any Indebtedness or Disqualified Stock incurred or issued pursuant to this clause (15)) does not exceed the greater of (a) $75.0 million and (b) 3.25% of the Total Assets of the Company determined on the date of such incurrence.
(c) The Company will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes or the applicable Note Guarantee on substantially identical terms; provided, however, that no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company or any Guarantor solely by virtue of being unsecured or by virtue of being secured on a junior priority basis.
(d) For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (15) of Section 4.09(b) hereof, or is entitled to be incurred pursuant to Section 4.09(a) hereof, the Company will be permitted in its sole discretion to divide, redivide, classify or reclassify such item of Indebtedness on the date of its incurrence, and later divide, redivide, classify or reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.09. Indebtedness under Credit Facilities outstanding on the date on which Notes are first issued and authenticated under this Indenture will initially be deemed to have been incurred on such date in reliance on the exception provided by this Indentureclause (1) of the definition of Permitted Debt. The accrual of interest or preferred stock dividends, (g) the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of any obligation of the Company or any Restricted Subsidiary as Indebtedness due to a change in accounting principles, and the payment of dividends on preferred stock or Disqualified Stock in the form of additional shares of the same class of preferred stock or Disqualified Stock will not be deemed to be an aggregate principal incurrence of Indebtedness or an issuance of preferred stock or Disqualified Stock for purposes of this Section 4.09; provided that, in each such case, the amount not thereof is included in Fixed Charges of the Company as accrued to exceed $10 million at the extent required by the definition of such term.
(e) For purposes of determining compliance with any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness pursuant denominated in a foreign currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the Registration Rights Agreement as applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. Notwithstanding any other provision of this Indenture and (k) Section 4.09, the incurrence by maximum amount of Indebtedness that the Company and its Subsidiaries or any Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of Hedging Obligations with respect fluctuations in exchange rates or currency values. The principal amount of any Permitted Refinancing Indebtedness incurred to long-term refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Permitted Refinancing Indebtedness is denominated that is in effect on the date of an Accounts Receivable Subsidiarysuch refinancing.
Appears in 1 contract
Samples: Indenture (NGL Energy Partners LP)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCUR") any Indebtedness (including Acquired Debt), ) and that the Company Borrower shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company Borrower and any Restricted Subsidiary may incur Indebtedness (including Acquired Debt) or issue shares of preferred stock if (i) the Fixed Charge Coverage Ratio for the CompanyBorrower'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 preferred stock is issued would have been at least (a) 2.25 2.0 to 11.0, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 incurred, or the preferred stock had been issued, as the case may be, at the beginning of such four-quarter period and (ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity period. The provisions of the Notes. The foregoing limitations will first paragraph of this Section 4.7 shall not apply to the incurrence of any of the following items of Indebtedness (acollectively, "PERMITTED INDEBTEDNESS"):
(i) the incurrence by the Company Borrower of additional Indebtedness under Credit Facilities (and the guarantee thereof by the Guarantors) in an aggregate principal amount outstanding pursuant to this clause (i) at any one time (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Borrower and its Restricted Subsidiaries thereunder), including all Permitted Refinancing Indebtedness then outstanding incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (i), not to exceed $375.0 million less the aggregate amount of all Net Proceeds of Asset Sales applied since December 11, 1998 to repay any such Indebtedness pursuant to Section 4.8;
(ii) the incurrence by the Borrower and its Restricted Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Borrower and the Guarantors of $500.0 million in aggregate principal amount of the Bridge Loans and the Guarantees thereof;
(iv) the incurrence by the Borrower or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the purpose of creditfinancing all or any part of the purchase price or cost of construction or improvement of property, and any extension, refinancing, renewal, replacement plant or refunding thereofequipment used in the business of the Borrower or such Restricted Subsidiary, in an aggregate principal amount at amount, including all Permitted Refinancing Indebtedness then outstanding incurred to refund, refinance or replace any one time outstanding other Indebtedness incurred pursuant to this clause (iv), not to exceed $25 30.0 million at any time outstanding;
(v) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness in connection with the acquisition of assets or a new Restricted Subsidiary; provided that such Indebtedness was incurred by the prior owner of such assets or such Restricted Subsidiary prior to such acquisition by the Borrower or one of its Restricted Subsidiaries and was not incurred in connection with, or in contemplation of, such acquisition by the Borrower or one of its Restricted Subsidiaries; and provided further that the principal amount (or accreted value, as applicable) of such Indebtedness, together with any other outstanding Indebtedness incurred pursuant to this clause (v), does not exceed $10.0 million;
(vi) the incurrence by the Borrower or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, less or the amount net proceeds of Net Proceeds which are used to refund, refinance or replace, Indebtedness that was permitted by this Agreement to be incurred (other than intercompany Indebtedness or Indebtedness incurred pursuant to clause (i) above);
(vii) Indebtedness incurred by the Borrower or any of Asset Sales its Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business in respect of workers' compensation claims or self-insurance, or other Indebtedness with respect to reimbursement-type obligations regarding workers' compensation claims; provided, however, that have been applied 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;
(viii) Indebtedness arising from agreements of the Borrower or a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or 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 Borrower or any Restricted Subsidiary (contingent obligations referred to permanently reduce borrowings in a footnote to financial statements and commitments under not otherwise reflected on the balance sheet shall not be deemed to be reflected on such balance sheet for purposes of this clause (A)) and (B) the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds, including noncash proceeds (the fair market value of such noncash proceeds being measured at the time received and without giving effect to any subsequent changes in value), actually received by the Borrower and its Restricted Subsidiaries in connection with such disposition;
(ix) the incurrence by the Borrower or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Borrower and any of its Restricted Subsidiaries; provided, however, that (A) if the Borrower 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 Bridge Loans and (B)(1) any subsequent issuance or transfer of Equity Interests that results in any such facilityIndebtedness being held by a Person other than the Borrower or one of its Restricted Subsidiaries and (2) any sale or other transfer of any such Indebtedness to a Person that is not either the Borrower or one of its Restricted Subsidiaries shall be deemed, PROVIDED that the proceeds in each case, to constitute an incurrence of such Indebtedness by the Borrower or such Restricted Subsidiary, as the case may be;
(x) the incurrence by the Borrower or any of the Guarantors of Hedging Obligations that are incurred for the purpose of (A) fixing, hedging or capping interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms of this Agreement to be outstanding or (B) protecting the Borrower and its Restricted Subsidiaries against changes in currency exchange rates;
(xi) the guarantee by the Borrower or any of the Guarantors of Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower that was permitted to be incurred by another provision of this Section 4.7;
(xii) the incurrence by the Borrower's Unrestricted Subsidiaries of Non-Recourse Debt; provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Borrower that was not used for acquisitions permitted by this clause (xii), and the issuance of preferred stock by Unrestricted Subsidiaries;
(xiii) obligations in respect of performance and surety bonds and completion guarantees provided by the Borrower or other expenditures not any Restricted Subsidiaries in the ordinary course of business, ; and
(bxiv) the incurrence by the Company Borrower or any of its Restricted Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (f) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness then outstanding incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (xiv), not to exceed $10 million at any 50.0 million. For purposes of determining compliance with this Section 4.7, in the event that an item of Indebtedness meets the criteria of more than one time outstanding, (h) Capital Lease Obligations of the categories of Permitted Indebtedness described in an aggregate principal amount not to exceed $2 million at any one time outstanding, clauses (i) purchase money through (xiv) above or is entitled to be incurred pursuant to the first paragraph of this Section 4.7, the Borrower shall, in its sole discretion, classify, or later reclassify, such item of Indebtedness in any manner that complies with this covenant. Accrual of interest, the accretion of accreted value and the payment of interest in the form of additional Indebtedness shall not be deemed to be an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date for purposes of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable SubsidiarySection 4.7.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock and a Guarantor may incur Acquired Debt, in each case if (i) the Fixed Charge Coverage Ratio for the Company's most recently ended four full fiscal quarters (taken as one accounting period) for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least (a) 2.25 2.0 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, in each case determined on a pro forma basis (including a pro forma application of the net proceeds Net Proceeds therefrom) ), as if the additional Indebtedness had been incurred incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period and (ii) such Indebtedness no Default or Event of Default has occurred and is pari passu with continuing or subordinated in right of payment to the Notes and has would occur as a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notes. consequence thereof; The foregoing limitations will provisions shall not apply to the incurrence of any of the following items of Indebtedness (acollectively, "Permitted Debt"):
(i) the incurrence by the Company or any of and/or its Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, under the New Credit Facility in an aggregate principal amount at any one time outstanding (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) not to exceed the greater of (x) $25 million100.0 million and (y) the sum of 85% of Eligible Receivables and 60% of Eligible Inventory, less in each case the aggregate amount of all Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds outstanding amount of such Indebtedness are not used for acquisitions or other expenditures not in and the ordinary course of business, lending commitments with respect thereto pursuant to Section 4.10;
(bii) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, incurrence by the Guarantors of Indebtedness represented by the Subsidiary Guarantees;
(diii) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, represented by Capital Lease Obligations (whether or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness not incurred pursuant to the immediately preceding paragraph or pursuant to clause (bsale and leaseback transactions), mortgage financing or purchase money obligations, in each case incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $5.0 million at any time outstanding;
(civ) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Debt;
(gv) the incurrence by the Company or any of its Wholly- Owned Subsidiaries (other than a Receivables Subsidiary) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Wholly-Owned Subsidiaries (other than a Receivables Subsidiary) or between or among any of the Company's Wholly-Owned Subsidiaries (other than a Receivables Subsidiary); provided, however, that are (a) if the Company is the obligor on such Indebtedness, such Indebtedness is unsecured and expressly subordinate to the payment in full of all Obligations with respect to the Notes and (b)
(1) 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 Subsidiary Guarantors(other than a Receivables Subsidiary) and (2) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly-Owned Subsidiary (other than a Receivables Subsidiary) shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(fvi) the incurrence by the Company of Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging interest rate risk with respect to variable any floating rate Indebtedness that is permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date terms of this Indenture and to be incurred;
(kvii) Indebtedness of a Receivables Subsidiary that is not recourse to the Company or any other Subsidiary of the Company (other than Standard Securitization Undertakings) incurred in connection with a Qualified Receivables Transaction; and
(viii) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect Indebtedness (in addition to long-term Indebtedness permitted by any other clause of this paragraph) in an Accounts Receivable Subsidiaryaggregate principal amount (or accreted value, as applicable) at any time outstanding not to exceed $10.0 million.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and the Company shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDED, HOWEVER, provided that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock and any Guarantor may incur Indebtedness or issue preferred stock if (i) the Fixed Charge Consolidated 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 is issued would have been at least (a) 2.25 2 to 1, if such date or the ratio of the Consolidated Indebtedness less Unrestricted Cash to Consolidated Tangible Net Worth of the Company is prior less than 3 to August 15, 1995 and (b) 2.50 to 1 thereafter1, 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 incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period and (ii) such Indebtedness is pari passu with or subordinated in right period. The first paragraph of payment to this Section 4.09 shall not prohibit the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity incurrence of any of the Notes. The foregoing limitations will not apply to following items of Indebtedness (acollectively, "Permitted Debt"):
(i) the incurrence by the Company and the Guarantors of Indebtedness or any of its Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, Disqualified Stock under Credit Facilities in an aggregate principal amount at any one time outstanding out- standing not to exceed the greater of (a) $25 million, less 450.0 million or (b) the amount of Net Proceeds the Borrowing Base as of Asset Sales that the date of such incurrence (with letters of credit being deemed to have been applied a principal amount equal to permanently reduce borrowings the maximum potential liability of the Company and commitments under the Guarantors thereunder);
(ii) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture and the Exchange Notes and the related Note Guarantees to be issued pursuant to the Registration Rights Agreement;
(iv) the incurrence by the Company or a Restricted Subsidiary of Indebtedness or Disqualified Stock (1) in connection with the acquisition of assets or a new Subsidiary or (2) to finance the purchase, lease or improvement of property (real or personal) or equipment (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets); provided that, in the case of clause (1), such Indebtedness or Disqualified Stock was incurred by the prior owner of such assets or the Company or such Restricted Subsidiary prior to such acquisition by the Company or a Restricted Subsidiary and was not incurred in connection with, or in contemplation of, such acquisition by the Company or a Restricted Subsidiary and in the case of clause (2), any such facility, PROVIDED Indebtedness incurred may not exceed the cost of such property or equipment; and provided that the proceeds principal amount (or accreted value, as applicable) of such Indebtedness, together with any other outstanding Indebtedness are incurred pursuant to this clause (iv) and including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (iv) does not used for acquisitions or other expenditures not in the ordinary course of business, exceed $30.0 million;
(bv) the incurrence by the Company or any Guarantor of its Subsidiaries 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 Existing Indebtednessfirst paragraph hereof or clauses (ii), (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notesiii), (div), (ix), (xv) or (xvi) of this paragraph;
(vi) the incurrence by the Company or any Restricted Subsidiary of its Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries Restricted Subsidiaries; provided that: (A) 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 (B)
(1) any subsequent issuance or transfer of Equity Interests that are results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary Guarantorsthereof, and (f2) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary thereof, shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi);
(vii) the incurrence by the Company or any Guarantor of Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging interest rate risk with respect to variable any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding;
(viii) the guarantee by the Company or any Guarantor of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Indenture, covenant;
(gix) the incurrence by the Company or any Guarantor of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (ix), not to exceed $10 20.0 million (it being understood that any Indebtedness incurred under this clause (ix) shall cease to be deemed incurred or outstanding for purposes of this clause (ix) but shall be deemed to be incurred for purposes of the first paragraph of this Section 4.09 from and after the first date on which the Company could have incurred such Indebtedness under the first paragraph of this Section 4.09 without reliance upon this clause (ix));
(x) Non-Recourse Financing incurred by the Company or any Restricted Subsidiary for the acquisition, development and/or improvement of real property or any infrastructure related thereto; provided that such Non-Recourse Financing is at the date of acquisition or the commencement of the development and/or improvement at least 70% of the estimated cost of the assets so acquired, developed or improved;
(xi) the incurrence by the Company or any Restricted Subsidiary of direct obligations to repay or guarantee shortfalls in payments of bond financing issued by community development districts and local government districts to construct infrastructure improvements ("CDD Obligations"), provided that the aggregate amount of all CDD Obligations of the Company and its Restricted Subsidiaries that is due and payable at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount does not to exceed $2 million at any one time outstanding, 10.0 million;
(i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date of this Indenture and (kxii) the incurrence by the Company and its the Restricted Subsidiaries of Hedging Obligations 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 long-term 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;
(xiii) shares of preferred stock of a Restricted Subsidiary issued to the Company or another Restricted Subsidiary; provided 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 shares of preferred stock (except to the Company or another Restricted Subsidiary) shall be deemed, in each case to be an issuance of shares of preferred stock;
(xiv) Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the acquisition or 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 that such Indebtedness is not reflected on the balance sheet of the Company or any Restricted Subsidiary (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (xiv));
(xv) Indebtedness incurred by the Company or any Restricted Subsidiary pursuant to any Construction Loan, provided that (A) at the time the Construction Loan is entered into or amended to include a new project or projects, as the case may be, the Construction Loan is not in excess of 85% of the estimated total cost of the projects under such Construction Loan taken as a whole, including land at fair market value, interest and soft costs (net of unrestricted deposits) and (B)(1) at the time any Construction Loan is entered into that relates to a single project, there are Valid Purchase Contracts Proceeds in excess of 65% of the maximum Construction Loan amount taken as a whole or (2) at the time any Construction Loan is entered into that relates to more than one project or if an Accounts Receivable Subsidiaryexisting Construction Loan is amended to include a new project or projects, there are Valid Purchase Contracts Proceeds in excess of 70% of the maximum Construction Loan amount taken as a whole; provided that under clause(B)(2), for each individual project there are Valid Purchase Contract Proceeds for such project in excess of 30% of the maximum Construction Loan amount for such project, and provided, further, that in the event a Default or Event of Default has occurred and is continuing or would be caused thereby, this clause (xv) shall be unavailable to enter into a new Construction Loan or amend an existing Construction Loan to include a new project or projects; and
(xvi) Indebtedness incurred by the Company or any of its Restricted Subsidiaries pursuant to Construction Loans existing as of the Issue Date up to the limits of such Construction Loan existing on the Issue Date. 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 (i) through (xvi) above, or is entitled to be incurred pursuant to the first paragraph of this Section 4.09, the Company will be permitted to classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 4.09. Accrual of interest, accretion or amortization of original issue discount or the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms will not be deemed to be an incurrence of Indebtedness for purposes of this Section 4.09; provided, in each such case, that the amount thereof is included in Consolidated Interest Incurred of the Company. Indebtedness outstanding and not repaid under the Credit Facilities on the Issue Date shall be deemed to have been incurred under clause (i) of the second paragraph of this Section 4.09.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and that the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock and the Company's Restricted Subsidiaries may incur Indebtedness if (i) the Company's Fixed Charge Coverage Ratio for at the Company's time of incurrence of such Indebtedness or the issuance of such Disqualified Stock after giving pro forma effect thereto as if the same had occurred at the beginning of the most recently ended four full fiscal quarters quarter period of the Company for which internal financial statements are available immediately preceding have been filed with the date on which such additional Indebtedness is incurred SEC, would have been at least (a) 2.25 2.0 to 1, if such date . The Company shall not incur any Indebtedness that is prior contractually subordinated in right of payment to August 15, 1995 and (b) 2.50 to 1 thereafter, in each case determined on a pro forma basis (including a pro forma application any other Indebtedness of the net proceeds therefrom) as if the additional Indebtedness had been incurred at the beginning of such four-quarter period and (ii) Company unless such Indebtedness is pari passu with or also contractually subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity on substantially identical terms; provided, however, that is greater than the remaining Weighted Average Life to Maturity no Indebtedness of the NotesCompany shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company solely by virtue of being unsecured. The foregoing limitations provisions of the first paragraph of this Section 4.09 will not apply to the incurrence of any of the following items of Indebtedness (acollectively, "Permitted Debt"):
(i) the incurrence by the Company or any of and its Restricted Subsidiaries of revolving credit additional term Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, under Credit Facilities in an aggregate principal amount at any one time outstanding not to exceed $25 million, 200.0 million less the aggregate amount of Net Proceeds all mandatory or scheduled repayments of Asset Sales the principal of any such additional term Indebtedness (other than repayments that are immediately reborrowed) that have actually been applied made since the date of this Indenture;
(ii) the incurrence by the Company and its Restricted Subsidiaries of additional revolving credit Indebtedness and letters of credit pursuant to permanently reduce borrowings Credit Facilities in an aggregate principal amount (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and commitments under its Restricted Subsidiaries thereunder) at any one time outstanding not to exceed the Specified Amount as of such facilitydate of incurrence; provided that, PROVIDED that the proceeds aggregate principal amount of such all Indebtedness are not used incurred pursuant to this clause (ii) is reduced to an outstanding balance of $1.0 million or less for acquisitions or other expenditures not at least 30 consecutive days in each fiscal year;
(iii) the ordinary course incurrence by the Company and its Restricted Subsidiaries of business, the Existing Indebtedness;
(biv) the incurrence by the Company of Indebtedness represented by the Notes;
(v) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the Notes and purpose of financing all or any part of the Senior Notespurchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount not to exceed $20.0 million at any time outstanding;
(dvi) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to extendrefund, refinance, renew, replace, refund refinance or defease, replace Indebtedness (other than intercompany Indebtedness and Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant clauses (i) and (ii) above) that was permitted by this Indenture to clause be incurred;
(b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1vii) the principal amount incurrence by the Company or any of such Refinancing Indebtedness shall not exceed the principal amount its Restricted Subsidiaries of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries Restricted Subsidiaries; provided, however, that are (i) if the Company is the obligor on any 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 a Restricted Subsidiary Guarantorsthereof and (B) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (fvii);
(viii) the incurrence by the Company or any of its Restricted Subsidiaries of (a) Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging interest rate risk with respect to variable any floating rate Indebtedness that is permitted by the terms of this Indenture to be incurred and (b) Currency Agreements that do not increase the Indebtedness of the Company and its Restricted Subsidiaries outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder;
(ix) Indebtedness in respect of performance bonds, letters of credits, surety or appeal bonds, prior to any drawing thereunder, for or in connection with pledges, deposits or payments made or given in the ordinary course of business;
(x) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this IndentureSection 4.09 (including, without limiting the generality of the forgoing, the guarantee by any Restricted Subsidiary of the Company of Existing Indebtedness);
(gxi) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Company that was not permitted by this clause (xi); and
(xii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xii), not to exceed $10 million at any 40.0 million. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness meets the criteria of more than one time outstanding, (h) Capital Lease Obligations of the categories of Permitted Debt described in an aggregate principal amount not to exceed $2 million at any one time outstanding, clauses (i) purchase money Indebtedness in an aggregate principal amount not through (xii) above or is entitled to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness be incurred pursuant to the Registration Rights Agreement as in effect on the date first paragraph of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable Subsidiary.Section
Appears in 1 contract
Samples: Indenture (Premier Parks Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), and the Company shall will not issue any Disqualified Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock and the Guarantors may incur Indebtedness or issue preferred stock, if (i) 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 preferred stock is issued would have been at least (a) 2.25 2.0 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, in each case determined on a pro forma basis (including a pro forma application of the net proceeds therefrom) therefrom and, in the case of Acquired Debt, giving pro forma effect to the applicable transaction related thereto), as if the additional Indebtedness had been incurred (and such transaction had occurred) or the preferred stock or Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period period.
(b) The provisions of Section 4.09(a) will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(1) the incurrence by the Company or any Guarantor of additional Indebtedness and letters of credit under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (ii1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) not to exceed the greater of (x) $320.0 million less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any of its Restricted Subsidiaries since the date hereof to repay any term Indebtedness under a Credit Facility or to repay any revolving credit Indebtedness under a Credit Facility and effect a corresponding commitment reduction thereunder pursuant to Section 4.10 hereof or (y) the amount of the Borrowing Base as of the date of such incurrence;
(2) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Company and the Guarantors of Indebtedness is pari passu with or subordinated in right of payment to represented by the Notes and has a Weighted Average Life the related Note Guarantees to Maturity that is greater than be issued on the remaining Weighted Average Life date hereof and the Exchange Notes and the related Note Guarantees to Maturity of be issued in accordance with the Notes. The foregoing limitations will not apply to Registration Rights Agreement;
(a4) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of creditfinancing all or any part of the purchase price or cost of design, and any extensionconstruction, refinancinginstallation or improvement of property, renewal, replacement plant or refunding thereofequipment used or usable in a Permitted Business, in an aggregate principal amount at amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any one time outstanding Indebtedness incurred pursuant to this clause (4), not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 10.0 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(b5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the Existing net proceeds of which are used to extend, refund, refinance, renew, defease or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a) or clauses (2), (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes3), (d4), (5) or (16) of this Section 4.09(b);
(6) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries; provided, however, that:
(A) if the Company or any Guarantor is the obligor on such Indebtedness and the payee is not the Company or a Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor; and
(1) 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 (2) 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 an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was 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 are results in any such preferred stock being held by a Person other than the Company or a Restricted Subsidiary Guarantorsof 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 an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (f7);
(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 by the Company or any of the 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 or pari passu with the Notes, then the guarantee shall be subordinated to the same extent as the Indebtedness guaranteed;
(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; performance, appeal, completion, guarantee and surety bonds; or similar requirements in the ordinary course of business;
(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 drawn against insufficient funds, so long as such Indebtedness is covered within five business days;
(12) the incurrence by Foreign Subsidiaries of Indebtedness in an aggregate principal amount at any time outstanding pursuant to this clause (12), including all Permitted Refinancing Indebtedness incurred to refund, refinance, defease, renew, extend or replace Indebtedness incurred pursuant to this clause (12), not to exceed $10.0 million;
(13) the incurrence by the Company or a Restricted Subsidiary of Indebtedness arising from agreements of the Company or such Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred in connection with the disposition of any business, assets or subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or subsidiary for the purpose of financing such acquisition; provided that the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the Company or such Restricted Subsidiary in connection with such disposition;
(14) the incurrence by the Company or a Restricted Subsidiary of Indebtedness consisting of take-or-pay obligations contained in supply agreements entered into in the ordinary course of business;
(15) the incurrence by the Company of Hedging Obligations Indebtedness to protect any of its Subsidiaries incurred in connection with the purchase of accounts receivable and related assets by the Company against interest rate risk from any such Subsidiary which assets are subsequently conveyed by the Company in connection with respect to variable rate Indebtedness permitted to be incurred a Receivable Facility; and
(16) the incurrence by this Indenture, (g) the Company or any of the Guarantors of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to extend, refund, refinance, renew, defease or replace any Indebtedness incurred pursuant to this clause (16), and the issuance by the Company of any Disqualified Stock and by any Restricted Subsidiary of any additional preferred stock, not to exceed $10 million at 50.0 million. The Company will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Pari Passu Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the related Note Guarantee on substantially identical terms; provided, however, that no Indebtedness shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company solely by virtue of being unsecured or by virtue of being secured on a first or junior Lien basis. 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 time outstandingof the categories of Permitted Debt described in clauses (1) through (16) of Section 4.09(b) or is entitled to be incurred pursuant to Section 4.09(a), (h) Capital Lease Obligations in an aggregate principal amount not the Company will be permitted to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence classify such item of Indebtedness pursuant to the Registration Rights Agreement as in effect 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. Indebtedness under Credit Facilities outstanding on the date on which Notes are first issued and authenticated under this Indenture will be deemed to have been incurred on such date in reliance on the exception provided by clause (1) of Section 4.09(b). The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and (k) the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence by of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09; provided, in each such case, that the amount thereof is included in the Fixed Charges of the Company and its Subsidiaries as accrued. Notwithstanding any other provision of Hedging Obligations with respect this Section 4.09, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to long-term Indebtedness this Section 4.09 shall not be deemed to be exceeded solely as a result of an Accounts Receivable Subsidiaryfluctuations in exchange rates or currency values.
Appears in 1 contract
Samples: Indenture (North American Pipe Corp)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and that the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock or preferred stock and the Company's Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) and issue Disqualified Stock or preferred stock if (i) 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 is issued would have been at least (a) 2.25 2.0 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 incurred, or the Disqualified Stock or preferred stock had been issued, as the case may be, at the beginning of such four-quarter period period. The foregoing provisions shall not apply to the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(i) the incurrence by the Company of Indebtedness and letters of credit pursuant to the Credit Agreement; provided that the aggregate principal amount of all such Indebtedness (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company thereunder) then classified as having been incurred in reliance on this clause (i) that remains outstanding under the Credit Agreement after giving effect to such incurrence does not exceed the sum of $20.0 million;
(ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes incurrence by the Company and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity its Restricted Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company of Indebtedness represented by the Notes. The foregoing limitations will not apply to ;
(aiv) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the purpose of creditfinancing all or any part of the purchase price or cost of construction or improvement of property, and plant or equipment used in the business of the Company or such Restricted Subsidiary (whether through the direct purchase of assets or the Capital Stock of any extension, refinancing, renewal, replacement or refunding thereofPerson owning such Assets), in an aggregate principal amount at any one time outstanding or accreted value, as applicable, not to exceed $25 10.0 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, ;
(bv) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in connection with the Existing Indebtedness, (c) acquisition of assets or a new Restricted Subsidiary; provided that such Indebtedness was incurred by the incurrence prior owner of such assets or such Restricted Subsidiary prior to such acquisition by the Company and or one of its Subsidiaries of Indebtedness represented and was not incurred in connection with, or in contemplation of, such acquisition by the Notes and Company or one of its Subsidiaries; provided further that the Senior Notesprincipal amount (or 41 accreted value, as applicable) of such Indebtedness, together with any other outstanding Indebtedness incurred pursuant to this clause (dv), does not exceed $5.0 million;
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to extendrefund, refinance, renew, replace, refund refinance or defease, replace Indebtedness incurred pursuant that was permitted by this Indenture to the immediately preceding paragraph or pursuant to clause be incurred;
(b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1vii) the principal amount incurrence by the Company or any of such Refinancing Indebtedness shall not exceed the principal amount its Restricted Subsidiaries of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries Restricted Subsidiaries; provided, however, that are (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 a Restricted Subsidiary Guarantorsand (B) any sale or other transfer of any such Indebtedness to a Person that is not either 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, as the case may be;
(fviii) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging (i) interest rate risk with respect to variable any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding or (ii) exchange rate risk with respect to any agreement or Indebtedness of such Person payable in a currency other than U.S. dollars;
(ix) the Guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this IndentureSection 4.09;
(x) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt; provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Company;
(gxi) additional Indebtedness incurred by the Company or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including, without limitation, to letters of credit in respect to workers' compensation claims or self-insurance, or other Indebtedness with respect to reimbursement type obligations regarding workers' compensation claims; provided, however, that upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;
(xii) Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, asset or Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition; provided that (x) such Indebtedness is not reflected on the balance sheet of the Company or any Restricted Subsidiary (contingent obligations referred to in a footnote or footnotes to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (x)) and (y) the maximum assumable liability in respect of such Indebtedness shall at no time exceed 50% of 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 such subsequent changes in value) actually received by the Company and/or such Restricted Subsidiary in connection with such disposition;
(xiii) obligations in respect of performance and surety bonds and completion guarantees provided by the Company or any Restricted Subsidiary in the ordinary course of business;
(xiv) guarantees incurred in the ordinary course of business in an aggregate principal amount not to exceed $10 5.0 million at any one time outstanding, ; and
(h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date of this Indenture and (kxv) the incurrence by the Company and or any of its Restricted Subsidiaries of Hedging Obligations additional Indebtedness, including Attributable Debt incurred after the date of this Indenture, in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (xv), not to exceed $20.0 million. For purposes of determining compliance with respect this Section 4.09, 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 (xv) above or is entitled to long-term be incurred pursuant to the first paragraph of this Section 4.09, the Company shall, in its sole discretion, classify such item of Indebtedness in any manner that complies with this Section 4.09 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 hereof. In addition, the Company may, at any time, change the classification of an Accounts Receivable Subsidiaryitem of Indebtedness (or any portion thereof) to any other clause or to the first paragraph hereof provided that the Company would be permitted to incur such item of Indebtedness (or portion thereof) pursuant to such other clause or the first paragraph hereof, as the case may be, at such time of reclassification. Accrual of interest, accretion or amortization of original issue discount and the accretion of accreted value will not be deemed to be an incurrence of Indebtedness for purposes of this Section 4.09.
Appears in 1 contract
Samples: Indenture (Aki Holding Corp)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company Neither of the Obligors shall, or shall not, and shall not permit any of its Material Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), and neither of the Company Obligors shall not issue any Disqualified Stock and Stock. Neither of the Obligors shall not permit incur any of its Subsidiaries to issue any shares of preferred stock; PROVIDED, HOWEVER, that the Company may incur Indebtedness if (i) 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 would have been at least (a) 2.25 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, in each case determined on a pro forma basis (including a pro forma application of the net proceeds therefromPermitted Debt) as if the additional Indebtedness had been incurred at the beginning of such four-quarter period and (ii) such Indebtedness that is pari passu with or contractually subordinated in right of payment to any other Indebtedness of such Obligor unless such Indebtedness is also contractually subordinated to the Notes on substantially identical terms; provided, however, that no Indebtedness of such Obligor shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of such Obligor solely by virtue of being unsecured. The provisions of the first paragraph of this Section 8.3 shall not apply to the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(i) the incurrence by an Obligor of Pari Passu Indebtedness in an aggregate principal amount (including the aggregate principal amount of all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (i)), which does not exceed $100,000,000 (in the aggregate for both Obligors), provided that (A) no more than $50,000,000 thereof (less any amount of Indebtedness incurred under clause (xii) below) may consist of Indebtedness under revolving credit working capital facilities entered into with one or more commercial bank or similar institutional lenders and (B) none of which may consist of Indebtedness under any other type of borrowing arrangement with a commercial bank or similar institutional lender;
(ii) unsecured Subordinated Indebtedness or Disqualified Stock of an Obligor incurred to finance the construction, expansion, development or acquisition of music libraries and other recorded music programming, furniture, fixtures and equipment (including satellites, ground stations and related equipment) if such Subordinated Indebtedness or Disqualified Stock, as applicable, has a Weighted Average Life to Maturity that is greater longer than the remaining Weighted Average Life to Maturity of the Notes. The foregoing limitations will not apply to (a) the incurrence by the Company or any of its Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, in an aggregate principal amount at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, (b) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and has a final Stated Maturity of principal later than the Stated Maturity of principal of the Notes;
(3iii) if unsecured Subordinated Indebtedness or Disqualified Stock of an Obligor in an aggregate principal amount (or liquidation preference, as applicable) (including the aggregate principal amount (or liquidation preference, as applicable) of all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness or Disqualified Stock, as applicable, incurred pursuant to this clause (iii)) at any time outstanding not to exceed the product of (a) $100.00 and (b) the number of Subscribers at such time if such Subordinated Indebtedness or Disqualified Stock, as applicable, has a Weighted Average Life to Maturity longer than the Weighted Average Life to Maturity of the Notes and has a final Stated Maturity of principal later than the Stated Maturity of principal of the Notes;
(iv) the incurrence by an Obligor or a Material Subsidiary of Existing Indebtedness and the incurrence by an Obligor or a Material Subsidiary of Indebtedness pursuant to the Concurrent Financing Transactions;
(v) the incurrence by the Obligors of the Indebtedness represented by the Notes;
(vi) the incurrence by an Obligor or a Material Subsidiary of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of acquisition, construction or improvement of (A) replacement satellites and related equipment and launches in an aggregate principal amount (or initial accreted value if such indebtedness is issued with original issue discount), including all Permitted Refinancing Indebtedness shall be subordinated in right of payment incurred to the Notes on terms refund, refinance or replace any Indebtedness incurred pursuant to this clause (vi)(A), not to exceed $200,000,000 at least as favorable to the Holders of Notes as those contained anytime outstanding in the documentation governing aggregate for both of the Obligors and all of the Material Subsidiaries and (B) property, plant or equipment used in the business of such Obligor or Material Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness being extendedincurred to refund, refinancedrefinance or replace any Indebtedness incurred pursuant to this clause (vi), renewednot to exceed $30,000,000 at any time outstanding in the aggregate for both of the Obligors and all of the Material Subsidiaries;
(vii) the incurrence by an Obligor or a Material Subsidiary of Permitted Refinancing Indebtedness in exchange for, replacedor the net proceeds of which are used to refund, refunded refinance or defeased replace Indebtedness (a "PERMITTED REFINANCING"other than intercompany Indebtedness) that was permitted by this Agreement to be incurred under clauses (i), (eii), (iii), (iv), (v), (vi), (xii), (xiii), (xiv) or (xv) of this paragraph;
(viii) the incurrence by an Obligor or a Material Subsidiary of intercompany Indebtedness between or among the Company such Obligor and any of its Wholly Owned Subsidiaries Material Subsidiaries; provided, however, that: (a) if such Obligor is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes; and (b)
(i) any subsequent issuance or transfer of Equity Interests that are results in any such Indebtedness being held by a Person other than such Obligor or a Material Subsidiary Guarantorsthereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either such Obligor or a Material Subsidiary thereof; shall be deemed, in each case, to constitute an incurrence of such Indebtedness by such Obligor or such Material Subsidiary, as the case may be, that was not permitted by this clause (fviii);
(ix) the incurrence by the Company an Obligor of Hedging Obligations to protect that are incurred for the Company against sole purpose of fixing or hedging (x) interest rate risk with respect to variable any floating rate Indebtedness that is permitted by the terms of this Agreement to be incurred by this Indentureoutstanding or (y) fluctuation in currency values;
(x) the accrual of interest, (g) the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this covenant;
(xi) the incurrence by an Obligor of additional Indebtedness (including Acquired Debt) or Disqualified Stock in an aggregate principal amount (or liquidation preference or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness or Disqualified Stock incurred pursuant to this clause (xi), not to exceed $30,000,000 in the aggregate for both Obligors;
(xii) Indebtedness the proceeds of which are utilized solely to finance working capital in an aggregate principal amount not to exceed the lesser of (a) $10 million at any 50,000,000 and (b) 80% of Qualified Receivables (in the aggregate for both Obligors);
(xiii) financing provided by a satellite or satellite launch vendor or Affiliate thereof of all or part of the cost of construction, launch and insurance of one time outstanding, or more replacement satellites or satellite launches relating to such satellites provided by such vendor or its Affiliates;
(hxiv) Capital Lease Obligations Indebtedness for which the Obligors have received consent of the Note Investors in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date accordance with Section 5.1 of this Indenture Agreement;
(xv) any Qualified Sale and Leaseback Transaction; and
(kxvi) the incurrence by the Company Obligor of Reissued Pari Passu Indebtedness and Indebtedness ("Satellite Insurance Shortfall Indebtedness") up to the amount of any Satellite Insurance Shortfall, it being understood that any such Reissued Pari Passu Indebtedness shall not reduce the amount of Pari Passu Indebtedness the Obligors are permitted to issue under Section 8.3(i). For purposes of determining compliance with this Section 8.3, 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 (xvi) above, an Obligor shall, in its Subsidiaries sole discretion, classify such item of Hedging Obligations Indebtedness in any manner that complies with respect this Section 8.3 and such item of Indebtedness shall be treated as having been incurred pursuant to long-term Indebtedness only one of an Accounts Receivable Subsidiarysuch clauses.
Appears in 1 contract
Samples: Shareholder Agreements (Xm Satellite Radio Holdings Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall Issuers will not, and shall will not permit any of its their Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) other than Permitted Debt and the Company shall Issuers will not issue any Disqualified Stock and shall will not permit any of its their Restricted Subsidiaries to issue any shares of preferred stockstock (other than to an Issuer or another Restricted Subsidiary); PROVIDEDprovided, HOWEVERhowever, that the Company Issuers may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock and any of the Issuers' Restricted Subsidiaries may incur Indebtedness or issue shares of preferred stock if (i) the Fixed Charge Coverage Issuers' Leverage Ratio for at the Company's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding time of incurrence of such Indebtedness or the date on which issuance of such additional Indebtedness is incurred Disqualified Stock or such preferred stock, as the case may be, after giving pro forma effect to such incurrence or issuance and to the use of the proceeds therefrom would have been at least no greater than (a) 2.25 7.0 to 1, if such date incurrence or issuance is on or prior to August 15December 31, 1995 2000, and (b) 2.50 6.5 to 1 thereafter1, if such incurrence or issuance is after December 31, 2000. The Issuers will not incur any Indebtedness that is contractually subordinated in each case determined on a pro forma basis (including a pro forma application right of payment to any other Indebtedness of the net proceeds therefrom) as if the additional Indebtedness had been incurred at the beginning of such four-quarter period and (ii) Issuers unless such Indebtedness is pari passu with or also contractually subordinated in right of payment to the Senior Discount Notes and has a Weighted Average Life to Maturity on substantially identical terms; provided, however, that is greater than the remaining Weighted Average Life to Maturity no Indebtedness of the Notes. The foregoing limitations will not apply to (a) the incurrence by the Company or any of its Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, in an aggregate principal amount at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, (b) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness Issuers shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Notes on terms at least as favorable Issuers solely by virtue of being unsecured. The provisions of the first paragraph of this covenant shall not apply to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (f) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of any of the following items of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable Subsidiary.collectively, "Permitted Debt"):
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable with respect to liable, contingently or otherwise (collectively, "INCURincur") ), with respect to any Indebtedness (including Acquired Debt), and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that so long as no Default has occurred and is continuing:
(i) the Company may incur or otherwise become directly or indirectly liable for Indebtedness (including Acquired Debt) (and a Subsidiary of the Company that is a Guarantor may guarantee on a subordinated basis such Indebtedness) and the Company may issue shares of Disqualified Stock if (ia) such Indebtedness is expressly subordinated in right of payment to the Notes, (b) the Fixed Charge Coverage Ratio of the Company 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 is issued would have been at least 2.0 to 1, 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 had been issued, as the case may be, at the beginning of such four quarter period, (c) the Weighted Average Life to Maturity of such Indebtedness or Disqualified Stock is greater than the remaining Weighted Average Life to Maturity of the Notes, and (d) the final maturity of such Indebtedness or Disqualified Stock is not prior to the date on which the Notes mature; and
(ii) the Company may incur or otherwise become directly or indirectly liable for Indebtedness (including Acquired Debt) (and a Subsidiary of the Company that is a Guarantor may guarantee on a pari passu basis such Indebtedness) if (a) such Indebtedness is unsecured and pari passu in right of payment to the Notes, (b) the Fixed Charge Coverage Ratio of the Company 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 would have been at least (a) 2.25 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 at the beginning of such four-quarter period and period, (iic) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that of such Indebtedness is greater than the remaining Weighted Average Life to Maturity of the Notes, and (d) the final maturity of such Indebtedness is not prior to the date on which the Notes mature. The So long as no Default has occurred and is continuing, the foregoing limitations will provisions shall not apply to to:
(ai) the incurrence by the Company or any of its Subsidiaries of revolving credit working capital Indebtedness and letters of credit, credit of the Company (and any extensionGuarantee thereof by a Subsidiary of the Company that is a Guarantor) and Indebtedness represented by standby letters of credit or performance, refinancingsurety, renewalappeal or other similar bonds on terms customary in the hotel-casino industry, replacement or refunding thereofin each case to the extent incurred in the ordinary course of business, in an aggregate principal amount at any one time outstanding not (with letters of credit being deemed to exceed $25 million, less have a principal amount equal to the amount maximum potential liability of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, (b) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries thereunder) not to exceed (including the amount of any Permitted Refinancing Indebtedness applied to the refinancing thereof) $20.0 million;
(ii) Indebtedness of the Company represented by Equipment Financing (or as otherwise described below in this clause (ii)) incurred by the Company; provided that the aggregate principal amount of Indebtedness outstanding at any time pursuant to this clause (ii) shall not exceed (including the amount of any Permitted Refinancing Indebtedness applied to the refinancing thereof) $30.0 million; provided, further, that following the date on which the Orleans is Operating, up to $10.0 million of such Indebtedness may be used for the purpose of purchasing or constructing improvements on the following real property used in the business of the Company: (a) the parcel of real property leased by the Company from Nevada Power Company on the date of the 1996 Indenture and (b) real property not included in the Collateral as of the date of this Indenture, so long as in any such case the Trustee, for the benefit of the Holders, is granted a lien in such real property and improvements subordinate only to the lien of such Indebtedness secured by such real property and improvements;
(iii) Permitted Sundance Indebtedness of the Company (and any Guarantee thereof by a Subsidiary of the Company that is a Guarantor);
(iv) Existing Indebtedness;
(v) Indebtedness of the Company and the Guarantor represented by the Notes, the 1996 Notes and the Senior Notes, respective Guarantees thereof;
(dvi) the incurrence by Permitted Refinancing Indebtedness of the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund or defease, Indebtedness that was permitted to be incurred pursuant to the immediately preceding first paragraph of this covenant or pursuant to clause by clauses (bi), (cii), (iii), (iv), (v), (x) or this clause (gvi) of this paragraph paragraph;
("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (evii) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are is a Guarantor; provided, however, that (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than a Wholly Owned Subsidiary Guarantorsthat is a Guarantor and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary that is a Guarantor shall be deemed, (f) the in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(viii) Indebtedness of Hedging Obligations to protect the Company against interest rate risk with respect that is owed to variable rate Indebtedness permitted to be incurred by this Indenture, (g) additional Indebtedness any shareholder of Coast Resorts or any Shareholder Related Party in an aggregate principal amount at any time outstanding not to exceed $10 million at any one time outstanding3.0 million; provided, (h) Capital Lease Obligations however, that such Indebtedness is expressly subordinated in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence right of Indebtedness pursuant payment to the Registration Rights Agreement as in effect on Notes, the Weighted Average Life to Maturity of such Indebtedness is greater than the remaining Weighted Average Life to Maturity of the Notes and the final maturity of such Indebtedness is not prior to the date on which the Notes mature;
(ix) Hedging Obligations of the Company with respect to any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding;
(x) Permitted Barbary Coast Expansion Indebtedness of the Company (and any Guarantee thereof by a Subsidiary of the Company that is a Guarantor) incurred after the Orleans Hotel and Casino has become Operating; and
(kxi) the incurrence bond or surety obligations posted by the Company or any Subsidiary of the Company in order to prevent the loss or material impairment of or to obtain a Gaming License or as otherwise required by an order of any Gaming Authority to the extent required by applicable law and its Subsidiaries consistent in character and amount with customary industry practice. If the Company or any Subsidiary of Hedging Obligations the Company incurs any Indebtedness that may be secured by a Pari Passu Lien on the Pari Passu Collateral (a "Pari Passu Debt"), upon the request of the Company, the Trustee is authorized to enter into an intercreditor agreement with respect the holder or holders of such pari passu Indebtedness (the "Pari Passu Debtholder") in substantially the form thereof attached to long-term Indebtedness of an Accounts Receivable Subsidiarythe 1996 Indenture.
Appears in 1 contract
Samples: Indenture (Coast Resorts Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock if (i) 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 preferred stock is issued would have been at least (a) 2.25 2 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 incurred, or the Disqualified Stock or preferred stock had been issued, as the case may be, at the beginning of such four-quarter period and period.
(iib) such Indebtedness is pari passu with or subordinated in right The provisions of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notes. The foregoing limitations will Section 4.09(a) hereof shall not apply to the incurrence of any of the following items of Indebtedness (acollectively, "Permitted Debt"):
(i) the incurrence by the Company or any a Foreign Subsidiary of its Subsidiaries of revolving credit Indebtedness and (including letters of credit, with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and any extension, refinancing, renewal, replacement or refunding thereof, in an its Subsidiaries thereunder) under Credit Facilities and the Guarantee thereof by the Guarantors; provided that the aggregate principal amount at any one time of all Indebtedness of the Company and its Subsidiaries (including letters of credit) outstanding under Credit Facilities after giving effect to such incurrence does not exceed an amount equal to exceed the greater of (a) $25 million, 60.0 million less the aggregate amount of all Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments repay any Indebtedness under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions a Credit Facility pursuant to Section 4.10 hereof or other expenditures not in the ordinary course of business, (b) the incurrence by sum of 85% of the accounts receivable plus 55% of the jewelry inventory, 65% of the optical inventory and 55% of all other inventory, in each case of the Company or any of and its Subsidiaries net of reserves, as shown on the most recent balance sheet of the Existing Indebtedness, Company and its Subsidiaries;
(cii) the incurrence by the Company and its Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company of Indebtedness represented by the Notes (other than any Additional Notes) and the Senior Exchange Notes (other than any Additional Notes, ) and the incurrence by the Guarantors of Indebtedness represented by the Subsidiary Guarantees;
(div) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in exchange for, each case incurred for the purpose of financing all or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity any part of the Indebtedness being extendedpurchase price or cost of construction or improvement of property, refinanced, renewed, replaced, refunded plant or defeased or (y) equipment used in the remaining Weighted Average Life to Maturity business of the Notes and (3) if applicableCompany or such Subsidiary, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (f) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount amount, together with any Attributable Debt with respect to the Smithfield Property permitted pursuant to Section 4.15 hereof, not to exceed $10 10.0 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable Subsidiary.any
Appears in 1 contract
Samples: Indenture (O Ray Holdings Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock if (i) 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 preferred stock is issued would have been at least (a) 2.25 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 incurred, or the Disqualified Stock or preferred stock had been issued, as the case may be, at the beginning of such four-quarter period and (ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity period. The provisions of the Notes. The foregoing limitations will first paragraph of this Section 4.09 shall not apply to the incurrence of any of the following items of Indebtedness (acollectively, "Permitted Debt"):
(i) the incurrence by the Company or any of its the Foreign Subsidiaries of revolving credit Indebtedness of the Company and the Foreign Subsidiaries (including letters of credit, with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and any extension, refinancing, renewal, replacement or refunding thereof, in an its Subsidiaries thereunder) under Credit Facilities and the Guarantee thereof by the Guarantors; provided that the aggregate principal amount at any one time of all Indebtedness of the Company and its Foreign Subsidiaries (including letters of credit) outstanding under Credit Facilities after giving effect to such incurrence does not exceed an amount equal to exceed $25 million, 375.0 million less the aggregate amount of all Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments repay any Indebtedness under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, a Credit Facility pursuant to Section 4.10 hereof;
(b) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (cii) the incurrence by the Company and its Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company of Indebtedness represented by the Notes (other than any Additional Notes) and the Senior Notes, incurrence by the Guarantors of Indebtedness represented by the Subsidiary Guarantees;
(div) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $10.0 million at any time outstanding, including any Permitted Refinancing Indebtedness incurred pursuant to clause (v) below to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv);
(v) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extendrefund, refinancerefinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred by the first paragraph of this Section 4.09, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause by clauses (bii), (ciii) or (giv) of this paragraph Section 4.09.
("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1vi) the principal amount incurrence by the Company or any of such Refinancing Indebtedness shall not exceed the principal amount its Subsidiaries of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries Subsidiaries; provided, however, that are (a) 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 (b)
(1) 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 Subsidiary Guarantorsthereof and (2) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be, that was not permitted by this clause (fvi);
(vii) the incurrence by the Company of Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging interest rate risk with respect to variable any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding or for purposes of hedging foreign exchange risk in the ordinary course of business;
(viii) the guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Subsidiary of the Company that was permitted to be incurred by another provision of this Indenture, Section 4.09; and
(gix) the incurrence by the Company of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding not to exceed $10 million at any 20.0 million. 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 time outstanding, (h) Capital Lease Obligations of the categories of Permitted Debt described in an aggregate principal amount not to exceed $2 million at any one time outstanding, clauses (i) purchase money Indebtedness in an aggregate principal amount not through (ix) above or is entitled to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness be incurred pursuant to the Registration Rights Agreement first paragraph of this Section 4.09, in each case as of the date of incurrence thereof, the Company shall, in effect its sole discretion, classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Indenture Section 4.09. Accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and (k) the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock shall not be deemed to be an incurrence by of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09; provided, in each such case, that the amount thereof is included in Fixed Charges of the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable Subsidiaryas accrued.
Appears in 1 contract
Samples: Supplemental Indenture (Windmere Durable Holdings Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and that the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified 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 is issued would have been at least 2.5 to 1, 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 had been issued, as the case may be, at the beginning of such four-quarter period. The foregoing provisions shall not apply to:
(i) the incurrence by the Company of term Indebtedness under the New Credit Agreement or any one or more successor or additional bank facilities and/or Attributable Debt in respect of sale and leaseback transactions the net proceeds of which were applied to repay any such term Indebtedness in an aggregate principal amount at any time outstanding not to exceed an amount equal to $170.0 million less the aggregate amount of all repayments, optional or mandatory, of the principal of any such term Indebtedness (other than repayments that are immediately reborrowed and other than repayments made with the proceeds of sale and leaseback transactions pursuant to this clause (i)) that have been made since the Issue Date;
(a) the incurrence by the Company of revolving Indebtedness under the New Credit Agreement (or any one or more successor or additional bank facilities) and letters of credit (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company thereunder) and (b) the incurrence by the Receivables Subsidiary of Non-Recourse Debt under the Receivables Facility; provided, however, that, the aggregate principal amount at any time outstanding pursuant to subclauses (a) and (b) of this clause (ii) (excluding intercompany Indebtedness of the Receivables Subsidiary permitted by clause (viii) below) shall not exceed an amount equal to $155.0 million less the aggregate amount of all Net Proceeds of Asset Sales applied to permanently reduce the commitments with respect to such revolving Indebtedness pursuant to the provisions of Section 4.10 hereof;
(iii) the incurrence by the Company and its Subsidiaries of the Existing Indebtedness;
(iv) the incurrence by the Company of Indebtedness represented by the Senior Notes and the Notes;
(v) the incurrence by the Company of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company, in an aggregate principal amount not to exceed $25.0 million at any time outstanding;
(vi) the incurrence by any of the Company's Subsidiaries of Indebtedness in connection with the acquisition of assets or a new Subsidiary; provided that (1) such Indebtedness was incurred by the prior owner of such assets or such Subsidiary prior to such acquisition and was not incurred in connection with, or in contemplation of, such acquisition or is in the nature of an earnout payment or holdback payment incurred by one of the Company's Subsidiaries in connection with the acquisition of assets or a new Subsidiary, (2) the principal amount (or accreted value, as applicable) of such Indebtedness, together with any other outstanding Indebtedness incurred pursuant to this clause (vi), does not exceed $10.0 million and (3) 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 would have been at least (a) 2.25 2.5 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 at the beginning of such four-quarter period and period;
(ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notes. The foregoing limitations will not apply to (avii) the incurrence by the Company or any of its Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, in an aggregate principal amount at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, (b) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued Permitted Refinancing Debt in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, refund defease or defeaserefund, Indebtedness incurred pursuant that was permitted by this Indenture to the immediately preceding paragraph or pursuant to clause be incurred;
(b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1viii) the principal amount incurrence by the Company or any of such Refinancing Indebtedness shall not exceed the principal amount its Subsidiaries of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries Subsidiaries, and any intercompany Indebtedness arising in connection with a Receivables Facility; provided, however, that are (1) if the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinate to the payment in full of all Obligations with respect to the Notes and (2)(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 a Subsidiary Guarantorsand (B) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(fix) the incurrence by the Company of Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging interest rate risk with respect to variable any floating rate Indebtedness that is permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date terms of this Indenture and to be outstanding or for the purpose of hedging against currency exchange rate fluctuations;
(kx) the incurrence Guarantees by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of Subsidiaries, and Guarantees by Subsidiaries of Indebtedness of the Company, which Indebtedness is, in each case, permitted to be incurred under this covenant other than Indebtedness permitted to be incurred pursuant to subclause (b) of clause (ii) above; and
(xi) the incurrence by the Company or any of its Subsidiaries of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an Accounts Receivable Subsidiaryaggregate principal amount (or accreted value, as applicable) at any time outstanding not to exceed $25.0 million.
Appears in 1 contract
Samples: Indenture (Printpack Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCUR"“incur;” with “incurrence” having a correlative meaning) any Indebtedness (including Acquired Debt), and the Company shall will not issue any Disqualified Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) and issue Disqualified Stock, and Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) and issue preferred stock, 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 preferred stock is issued, as the case may be, would have been at least (a) 2.25 to 11.0, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 preferred stock had been issued, as the case may be, at the beginning of such four-quarter period period.
(b) Notwithstanding the foregoing, Section 10.11(a) will not prohibit the incurrence of any of the following (the items of Indebtedness described below in this Section 10.11(b) being referred to collectively as “Permitted Debt”):
(i) the incurrence by the Company and any Restricted Subsidiary of Indebtedness and letters of credit under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (i) (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 the greater of (x) $1.1 billion and (y) 20% of Adjusted Consolidated Net Tangible Assets, determined as of the date of the incurrence of such Indebtedness after giving pro forma effect to such incurrence and the application of the proceeds therefrom;
(ii) such the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company and the Guarantors of Indebtedness is pari passu with or subordinated in right of payment to represented by the Notes and has a Weighted Average Life the related Subsidiary Guarantees, in each case to Maturity that is greater than be issued on the remaining Weighted Average Life to Maturity of the Notes. The foregoing limitations will not apply to Issue Date;
(aiv) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of creditfinancing all or any part of the purchase price or cost of design, and construction, installation or improvement of property, plant or equipment used in the business of the Company or any extension, refinancing, renewal, replacement or refunding thereofof its Restricted Subsidiaries, in an aggregate principal amount at amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any one time outstanding Indebtedness incurred pursuant to this clause (iv), not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 50.0 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(bv) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the Existing net proceeds of which are used to refund, refinance, replace, defease or discharge Indebtedness (other than intercompany Indebtedness) or Disqualified Stock of the Company, or Indebtedness (other than intercompany Indebtedness) or preferred stock of a Restricted Subsidiary, in each case that was permitted by this Indenture to be incurred or issued under Section 10.11(a) or clauses (ii), (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notesiii), (div), (v) or (x) of this Section 10.11(b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries; provided, however, that (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 a Restricted Subsidiary and (B) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi);
(vii) 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 are results in any such preferred stock being held by a Person other than the Company or a Restricted Subsidiary; 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, will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary Guarantorsthat was not permitted by this clause (vii);
(viii) the incurrence of obligations of the Company or a Restricted Subsidiary pursuant to Interest Rate and Currency Xxxxxx, in each case entered into in the ordinary course of business for the purpose of limiting risks that arise in the ordinary course of business of the Company and its Restricted Subsidiaries;
(fix) the guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Restricted Subsidiary that was permitted to be incurred by another provision of this covenant; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(x) Permitted Acquisition Indebtedness;
(xi) the incurrence by the Company or any Restricted Subsidiary of Hedging Obligations to protect Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within five Business Days;
(xii) Indebtedness consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company against interest rate risk and the Restricted Subsidiaries;
(xiii) the incurrence by the Company or any Restricted Subsidiary of Indebtedness arising from agreements of the Company or any of its 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 Capital Stock of a Subsidiary, provided that the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the Company and its Restricted Subsidiaries in connection with such disposition;
(xiv) the incurrence by the Company or any Restricted Subsidiary of Indebtedness arising from Guarantees of Indebtedness of joint ventures at any time outstanding not to variable rate exceed the greater of $50.0 million and 1.0% of Adjusted Consolidated Net Tangible Assets determined as of the date of incurrence of such Indebtedness permitted after giving pro forma effect to be incurred such incurrence and the application of proceeds thereof; and
(xv) the incurrence by this Indenture, (g) additional the Company or any of its Restricted Subsidiaries of Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding(or accreted value, as applicable) that, when taken together with all other Indebtedness of the Company outstanding on the date of such incurrence (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, other than Indebtedness permitted by clauses (i) purchase money through (xiv) above or Section 10.11(a)) does not exceed the greater of (x) 2.5% of Adjusted Consolidated Net Tangible Assets determined as of the date of incurrence of such Indebtedness and (y) $125.0 million.
(c) For purposes of determining compliance with this Section 10.11, 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 (i) through (xv) of Section 10.11(b), or is entitled to be incurred pursuant to Section 10.11(a), the Company will be permitted to divide and classify such item of Indebtedness on the date of its incurrence, or later divide and reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 10.11. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in an aggregate principal amount the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will be deemed not to exceed $2 million at be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this covenant; provided, in each such case, that the amount of any one time outstandingsuch accrual, accretion or payment is included in Fixed Charges of the Company as accrued.
(jd) For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness pursuant and issuance of preferred stock, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the Registration Rights Agreement as applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. Notwithstanding any other provision of this Indenture and (k) Section 10.11, the incurrence by maximum amount of Indebtedness that the Company and its Subsidiaries may incur pursuant to this Section 10.11 shall not be deemed to be exceeded solely as a result of Hedging Obligations with respect fluctuations in the exchange rate of currencies. The principal amount of any Permitted Refinancing Indebtedness incurred to long-term refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Permitted Refinancing Indebtedness is denominated that is in effect on the date of an Accounts Receivable Subsidiarysuch refinancing.
Appears in 1 contract
Samples: First Supplemental Indenture (Plains Exploration & Production Co)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and that the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stockstock (other than to a Company or the Restricted Subsidiaries of the Company); PROVIDEDprovided, HOWEVERhowever, that the Company and its Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock and the Company's Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) and issue any shares of preferred stock (to the extent otherwise permitted by this Indenture) if (i) 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 is issued would have been at least (a) 2.25 2.0 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, in each case determined on a pro forma basis (including a pro 159 47 forma application of the net proceeds therefrom) ), as if the additional Indebtedness had been incurred incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period period. 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"):
(i) the incurrence by the Company and the Guarantors of Indebtedness and letters of credit (with letters of credit being deemed to have a principal amount equal to the stated amount thereof) and other obligations under Credit Facilities in an aggregate principal amount that does not exceed at any one time $25.0 million less the aggregate amount of all Net Proceeds of Asset Sales applied to repay Indebtedness under a Credit Facility pursuant to Section 4.10 hereof (other than temporary paydowns pending final application of such Net Proceeds);
(ii) the incurrence by the Company and the Guarantors of the Existing Indebtedness and letters of credit (including reimbursement obligations with respect thereto) supporting Existing Indebtedness whether such letters of credit are incurred under the Senior Credit Facility or otherwise;
(iii) the incurrence by the Company of Indebtedness represented by the Notes;
(iv) the incurrence by the Company or any of the Guarantors of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (iv), not to exceed $8.0 million at any time outstanding;
(v) the incurrence by the Company or any of the Guarantors 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 is permitted by this Indenture to be incurred under the first paragraph hereof or clauses (ii) or (iii) of this paragraph;
(vi) the incurrence by the Company or any of the Guarantors of intercompany Indebtedness between or among the Company and any 160 48 Guarantor; provided, however, that (i) if the Company is the obligor on such Indebtedness, such Indebtedness is pari passu expressly subordinated to the prior payment in full in cash of all Obligations with or subordinated in right of payment respect to the Notes and has (ii)(A) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Weighted Average Life Person other than the Company or a Subsidiary thereof and (B) any sale or other transfer of any such Indebtedness to Maturity a Person that is greater than not either the remaining Weighted Average Life Company or a Guarantor thereof shall be deemed, in each case, to Maturity constitute an incurrence of such Indebtedness by the Company or such Guarantor, as the case may be, that was not permitted by this clause (vi);
(vii) the incurrence by the Company or any of the Notes. The foregoing limitations will Guarantors 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 of this Indenture to be outstanding;
(viii) the guarantee by the Company or any of its Subsidiaries or any of the Guarantors of Indebtedness of the Company or another Guarantor that was permitted to be incurred by another provision of this Section 4.09;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Company that was not apply to permitted by this clause (aix), and the issuance of preferred stock by Unrestricted Subsidiaries;
(x) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, in an aggregate principal amount at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, (b) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (f) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount (including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness pursuant to this clause (x) not to exceed $10 5.0 million at any one time outstanding, ); or
(h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date of this Indenture and (kxi) the incurrence by the Restricted Subsidiaries that are not Guarantors of International Facility Loans under (and as defined in) the Senior Credit Facility; provided that the aggregate principal amount of all Indebtedness outstanding under such International Facility Loans after giving effect to such incurrence does not exceed an amount equal to $35.0 million. For purposes of determining compliance with this Section 4.09, 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 (x) above or is entitled to be incurred pursuant to the first paragraph of this Section 4.09, the Company and shall, in its Subsidiaries sole discretion, classify such item of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable Subsidiary.in any manner that complies 161 49
Appears in 1 contract
Samples: Senior Subordinated Note Purchase Agreement (Transtechnology Corp)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stockStock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness or issue Disqualified Stock and a Restricted Subsidiary may incur Acquired Debt if (i) the Fixed Charge Coverage Ratio ratio of Total Consolidated Indebtedness to Adjusted Consolidated Operating Cash Flow 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 is issued would have been at least (a) 2.25 less than or equal to 16.0 to 1.0, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period and period. The Company shall not incur any Indebtedness (iiincluding Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Company unless such Indebtedness is pari passu with or also contractually subordinated in right of payment to the Notes on substantially identical terms; provided, however, that no Indebtedness of the Company shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company solely by virtue of being unsecured. The provisions of the first paragraph of this Section 4.09 shall not apply to the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(i) the incurrence by the Company of Pari Passu Indebtedness or Satellite Vendor Indebtedness in an aggregate principal amount (including the aggregate principal amount of all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (i)), which does not exceed (a) $500 million plus (b) the amount equal to 125% of Total Incremental Equity as of the date of such incurrence;
(ii) unsecured subordinated Indebtedness or Disqualified Stock of the Company incurred to finance the construction, expansion, development or acquisition of music libraries and other recorded music programming, furniture, fixtures and equipment (including satellites, ground stations and related equipment) if such subordinated Indebtedness or Disqualified Stock, as applicable, has a Weighted Average Life to Maturity that is greater longer than the remaining Weighted Average Life to Maturity of the Notes and has a final Stated Maturity of principal later than the Stated Maturity of principal of the Notes. The foregoing limitations will ;
(iii) unsecured subordinated Indebtedness or Disqualified Stock of the Company in an aggregate principal amount (or liquidation preference, as applicable) (including the aggregate principal amount (or liquidation preference, as applicable) of all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness or Disqualified Stock, as applicable, incurred pursuant to this clause (iii)) at any time outstanding not apply to exceed the product of (a) $100.00 and (b) the number of Subscribers at such time if such subordinated Indebtedness or Disqualified Stock, as applicable, has a Weighted Average Life to Maturity longer than the Weighted Average Life to Maturity of the Notes and has a final Stated Maturity of principal later than the Stated Maturity of principal of the Notes;
(iv) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness and the incurrence by the Company and its Restricted Subsidiaries of Indebtedness pursuant to the Concurrent Financing Transactions;
(v) the incurrence by the Company of Indebtedness represented by the Notes;
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of creditfinancing all or any part of the purchase price or cost of acquisition, and any extensionconstruction or improvement of property, refinancing, renewal, replacement plant or refunding thereofequipment used in the business of the Company or such Subsidiary, in an aggregate principal amount at amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any one time outstanding Indebtedness incurred pursuant to this clause (vi), not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 30.0 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(bvii) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the Existing 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 covenant or clauses (i), (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notesii), (diii), (iv), (v), (vi), (vii), (xii), (xiii) or (xiv) of this paragraph;
(viii) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries Restricted Subsidiaries; provided, however, that: (a) if the Company is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes; and (b)
(i) any subsequent issuance or transfer of Equity Interests that are results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary Guarantorsthereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary thereof; shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (fviii);
(ix) the incurrence by the Company of Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging (x) interest rate risk with respect to variable any floating rate Indebtedness that is permitted by the terms of this Indenture to be incurred by this Indentureoutstanding or (y) fluctuation in currency values;
(x) the accrual of interest, (g) the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this covenant;
(xi) the incurrence by the Company of additional Indebtedness (including Acquired Debt) or Disqualified Stock in an aggregate principal amount (or liquidation preference or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness or Disqualified Stock incurred pursuant to this clause (xi), not to exceed $30.0 million;
(xii) Indebtedness the proceeds of which are utilized solely to finance working capital in an aggregate principal amount not to exceed the lesser of (a) $10 50.0 million at and (b) 80% of Qualified Receivables;
(xiii) from and after any Parent Company Merger, Indebtedness of Holdings in existence on the date hereof; and
(xiv) any Qualified Sale and Leaseback Transaction. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness meets the criteria of more than one time outstanding, (h) Capital Lease Obligations of the categories of Permitted Debt described in an aggregate principal amount not to exceed $2 million at any one time outstanding, clauses (i) purchase money Indebtedness in an aggregate principal amount not through (xv) above, or is entitled to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness be incurred pursuant to the Registration Rights Agreement as in effect on the date first paragraph of this Indenture and (k) the incurrence by Section 4.09, the Company shall, in its sole discretion, classify such item of Indebtedness in any manner that complies with this Section 4.09, and its Subsidiaries such item of Hedging Obligations with respect Indebtedness shall be treated as having been incurred pursuant to long-term Indebtedness only one of an Accounts Receivable Subsidiarysuch clauses or pursuant to the first paragraph of this Section 4.09.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, and the Guarantor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), and the Company and the Guarantor shall not issue any Disqualified Stock and shall not permit any of its their Restricted Subsidiaries to issue any shares of preferred stock; PROVIDED, HOWEVER, that stock unless the Company may incur Indebtedness if (i) the Fixed Charge Coverage Leverage 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 would have been at least (a) 2.25 not greater than 8.75 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, in each case 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 incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period the most recently ended fiscal quarter. So long as no Default shall have occurred and (ii) such Indebtedness is pari passu with be continuing or subordinated in right would be caused thereby, the first paragraph of payment to this covenant shall not prohibit the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity incurrence of any of the Notes. The foregoing limitations will not apply to following items of Indebtedness (a) the incurrence by the Company or any of its Subsidiaries of revolving credit Indebtedness and letters of creditcollectively, and any extension, refinancing, renewal, replacement or refunding thereof, in an aggregate principal amount at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, "Permitted Debt"):
(b) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (c1) the incurrence by the Company and its Restricted Subsidiaries and the Guarantor and its Restricted Subsidiaries of Indebtedness represented by under the Notes Credit Facilities; provided that the aggregate principal amount of all Indebtedness of the Company and its Restricted Subsidiaries and the Senior Notes, (d) Guarantor and its Restricted Subsidiaries outstanding under all Credit Facilities after giving effect to such incurrence does not exceed an amount equal to $3.5 billion less the incurrence aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (f) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable Subsidiary.its
Appears in 1 contract
Samples: Indenture (Charter Communications Holdings Capital Corp)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and the Company Borrower shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company Borrower may incur Indebtedness if (including Acquired Debt) or issue shares of Disqualified Stock and the Borrower's Restricted Subsidiaries may incur Eligible Indebtedness if, in each case, (i) no Default shall have occurred and be continuing or would occur as a consequence thereof and (ii) the Fixed Charge Coverage Borrower's Debt to Adjusted Consolidated Cash Flow Ratio for at the Company's time of incurrence of such Indebtedness or the issuance of such Disqualified Stock, after giving pro forma effect to such incurrence or issuance as of such date and to the use of proceeds therefrom as if the same had occurred at the beginning of the most recently ended four full fiscal quarters quarter period of the Borrower for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred available, would have been at least (a) 2.25 no greater than 6.5 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, in each case determined on a pro forma basis (including a pro forma application . The provisions of the net proceeds therefrom) as if the additional Indebtedness had been incurred at the beginning first paragraph of such four-quarter period and (ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notes. The foregoing limitations will this covenant shall not apply to the incurrence of any of the following items of Indebtedness (acollectively, "Permitted Debt") if no Default shall have occurred and be continuing or would occur as a consequence thereof:
(i) the incurrence by the Company Borrower or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, (including Indebtedness under Credit Facilities) in an aggregate principal amount (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Borrower and its Restricted Subsidiaries thereunder) at any one time outstanding not to exceed the greater of (x) $25 million, 100.0 million less the aggregate amount of all Net Proceeds of Asset Assets Sales that have been applied to permanently reduce borrowings repay Indebtedness under a Credit Facility since November 25, 1997 and commitments under any such facility, PROVIDED (y) 70% of the Eligible Receivables that the proceeds are outstanding as of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course date of business, incurrence;
(bii) the incurrence by the Company or any of Borrower and its Restricted Subsidiaries of the Existing Indebtedness, ;
(ciii) the incurrence by the Company and Borrower of Indebtedness represented by the Senior Discount Notes;
(iv) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the Notes and the Senior Notes, (d) the incurrence by the Company purpose of financing all or any of its Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity part of the Indebtedness being extendedpurchase price or cost of construction or improvement of property, refinanced, renewed, replaced, refunded plant or defeased or (y) equipment used in the remaining Weighted Average Life to Maturity business of the Notes and (3) if applicableBorrower or such Restricted Subsidiary, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (f) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other indebtedness incurred pursuant to this clause (iv), not to exceed $10 5.0 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable Subsidiary.;
Appears in 1 contract
Samples: Term Loan Agreement (Crown Castle International Corp)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and the Company shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that so long as no Default or Event of Default has occurred or is continuing, the Restricted Subsidiaries of the Company may incur Indebtedness (including Acquired Debt) if (i) the Fixed Charge Coverage Ratio for the Company's such Restricted Subsidiaries' 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 would have been at least (a) 2.25 2.0 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, in each case determined on a pro forma and consolidated basis (including a pro forma application of the net proceeds therefrom) ), as if the additional Indebtedness had been incurred at the beginning of such four-quarter period period. Compliance by the Company and its Restricted Subsidiaries with the Fixed Charge Coverage Test set forth in the first paragraph of this Section 4.09 hereof shall be determined on a consolidated basis for all Restricted Subsidiaries of the Company taken as a whole regardless of whether the Indebtedness is to be incurred by less than all such Restricted Subsidiaries. The provisions of the first paragraph of this covenant shall not apply to the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(i) the incurrence by the Restricted Subsidiaries of the Company of Indebtedness under Credit Facilities in aggregate principal amount not to exceed the greater of (x) 65% of inventory plus 85% of accounts receivable of the Company and its Wholly Owned Subsidiaries (in each case as determined in accordance with GAAP, but excluding accounts receivable that are past due more than 60 days), and (y) $215.0 million at any one time outstanding, less any Net Proceeds of Asset Sales applied to permanently reduce any such Indebtedness pursuant to Section 4.10 hereof;
(ii) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by Lily Cup of Indebtedness under Credit Facilities not to exceed the greater of (x) 65% of inventory plus 85% of accounts receivables plus 75% of the fair market value of the plant, property and equipment of Lily Cup (as determined in accordance with GAAP), and (y) Cn $30.0 million at any time outstanding and that is without recourse to the Company or any of its Restricted Subsidiaries or any of their respective assets (other than Lily Cup and its assets) and is not guaranteed by any such Person;
(iv) the incurrence by the Company of Indebtedness is pari passu with or subordinated in right represented by the Company's Guarantee of payment to the Obligations evidenced by the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity Company Guarantee Documents;
(v) the incurrence by any of the Notes. The foregoing limitations will Restricted Subsidiaries of the Company of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of such Restricted Subsidiary, in an aggregate principal amount not apply to exceed $5.0 million at any time outstanding;
(avi) the incurrence by any of the Restricted Subsidiaries of the Company of Indebtedness in connection with the acquisition of assets or a new Restricted Subsidiary; provided that such Indebtedness was incurred by the prior owner of such assets or such Restricted Subsidiary prior to such acquisition by one of the Restricted Subsidiaries of the Company and was not incurred in connection with, or in contemplation of, such acquisition by one of the Restricted Subsidiaries of the Company; and provided further that the principal amount (or accreted value, as applicable) of such Indebtedness, together with any other outstanding Indebtedness incurred pursuant to this clause (vi) and any Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (vi), does not exceed $5.0 million;
(vii) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Permitted Refinancing Indebtedness and letters of creditin exchange for, and any extension, refinancing, renewal, replacement or refunding thereof, in an aggregate principal amount at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the net proceeds of such which are used to refund, refinance or replace Indebtedness are not used for acquisitions (other than intercompany Indebtedness) that was permitted by this Agreement to be incurred under the first paragraph hereof or other expenditures not in the ordinary course of businessclauses (ii), (biv), (v) or (vi) of this paragraph;
(viii) the incurrence by the Company or any of its Restricted Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries (other than any Indebtedness of the Company or any of its Restricted Subsidiaries owing to Lily Cup), in each case subject to no Lien held by any Person other than the Company or a Restricted Subsidiary (other than Liens securing intercompany notes pledged under documents governing Indebtedness incurred pursuant to clause (i) above or under the Pledge Agreement); provided, however, that (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 a Restricted Subsidiary thereof and (b) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (viii); provided, further, however that any Indebtedness of the Company to any Restricted Subsidiary of the Company is unsecured and subordinated, pursuant to a written agreement, to the Company's Obligations under this Agreement and the Notes;
(ix) the incurrence by any of the Restricted Subsidiaries of the Company of Hedging Obligations that are Subsidiary Guarantors, incurred for the purpose of fixing or hedging interest rate risk with respect of any floating rate Indebtedness that is permitted by the terms of this Agreement to be outstanding;
(fx) the incurrence by the Global Cup Entities of Indebtedness under Credit Facilities in an aggregate principal amount not to exceed 65% of inventory plus 85% of accounts receivable of the Global Cup Entities (as determined in accordance with GAAP);
(xi) the incurrence by any of the Restricted Subsidiaries of the Company of Hedging Obligations Indebtedness which is recourse solely to protect newly acquired property financed with the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, (g) additional incurrence of such Indebtedness in an aggregate principal amount not to exceed $10 20.0 million at any time outstanding; and
(xii) the incurrence by any of the Restricted Subsidiaries of the Company of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) not to exceed $25.0 million at any one time outstanding. For purposes of determining compliance with this covenant, (h) Capital Lease Obligations in the event that an aggregate principal amount not to exceed $2 million at any item of Indebtedness meets the criteria of more than one time outstanding, of the categories of Permitted Debt described in clauses (i) purchase money through (x) above or is entitled to be incurred pursuant to the first paragraph of this covenant, the Company shall, in its sole discretion, classify such item of Indebtedness in any manner that complies with this covenant. Accrual of interest, accretion or amortization of original issue discount, and the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms shall not be deemed to be an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date for purposes of this Indenture and (k) Section 4.09; provided, in each such case, that the incurrence by amount thereof is included in Fixed Charges of the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable Subsidiaryas accrued.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company and the Guarantors shall not, and shall not permit any of its their Subsidiaries to, directly directly, or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stockPreferred Stock; PROVIDEDprovided, HOWEVERhowever, that the Company or any Guarantor may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock if (i) the Fixed Charge Coverage Ratio for the Company's Leverage Ratio at the time of incurrence of such Indebtedness or the issuance of such Disqualified Stock or such Preferred Stock, as the case may be, after giving pro forma effect to such incurrence or issuance as of such date and to the use of the proceeds therefrom as if the same had occurred at the beginning of the most recently ended four full fiscal quarters of the Company for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred available, would have been at least (a) 2.25 no greater than 7.1 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, in each case determined on a pro forma basis (including a pro forma application . The provisions of the net proceeds therefromfirst paragraph of this Section 4.09 shall not prohibit the incurrence of any of the following items of Indebtedness (collectively, Permitted Debt):
(i) as if the additional incurrence by the Company and any Restricted Subsidiary of Indebtedness had been incurred and letters of credit under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (i) (with letters of credit being deemed to have a principal amount equal to the beginning maximum potential liability of such four-quarter period the Company and its Subsidiaries thereunder) not to exceed $250,000,000 less the aggregate amount applied by the Company and the Restricted Subsidiaries to permanently reduce the availability of Indebtedness under the Credit Facility pursuant to Section 4.10;
(ii) such the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company and the Guarantors of Indebtedness is pari passu with or subordinated in right of payment to represented by the Notes and has a Weighted Average Life the related Subsidiary Guarantees to Maturity that is greater than be issued on the remaining Weighted Average Life to Maturity date of the Notes. The foregoing limitations will not apply to this Indenture;
(aiv) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the purpose of creditfinancing all or any part of the purchase price or cost of construction or improvement of property, and plant or equipment whether through the direct purchase of assets or at least a majority of the Voting Stock of any extension, refinancing, renewal, replacement or refunding thereofperson owning such assets, in an aggregate principal amount at amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any one time outstanding Indebtedness incurred pursuant to this clause (iv) not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 10,000,000 at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(bv) the incurrence by the Company or any of its Restricted Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Permitted Refinancing Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extendrefund, refinance, renew, replace, refund refinance or defease, replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred pursuant to under the immediately preceding first paragraph of this Section 4.09 or pursuant to clause clauses (bii), (ciii), (iv), (v), (x) or (gxii) of this paragraph paragraph.
("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1vi) the principal amount incurrence by the Company or any of such Refinancing Indebtedness shall not exceed the principal amount its Restricted Subsidiaries of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Wholly-Owned Subsidiaries Subsidiaries; provided, however, that are (x) 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 Subsidiary Guarantorsof the Company and (y) 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, shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (fvi); 55
(vii) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations to protect (x) that are incurred for the Company against purpose of fixing or hedging (1) interest rate risk with respect to variable any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding or (2) currency exchange rate risk in ordinary course of business, or (y) that are incurred for the purpose of swapping fixed interest rates for floating interest rates in notional amounts not to exceed $100,000,000 in the aggregate; provided that in the case of agreements related to currency exchange rate risk, such agreements are related to business transactions of the Company or its Restricted Subsidiaries entered into in the ordinary course of business or in the case of agreements related to currency exchange rate risk, agreements related to investment rate risk and interest rate swap agreements, such agreements are entered into for bona fide hedging purposes, or bona fide business purposes, in the case of interest rate swaps, of the Company or its Restricted Subsidiaries (as determined in good faith by the Board of Directors or senior management of the Company) and substantially correspond in terms of notional amount, duration, currencies and interest rates, as applicable, to Indebtedness of the Company or its Restricted Subsidiaries incurred without violation of the Indenture;
(viii) the guarantee by the Company of Indebtedness of any Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this covenant;
(ix) the guarantee by any Restricted Subsidiary of Indebtedness of the Company or any Guarantor that was permitted to be incurred by another provision of this covenant;
(x) Indebtedness incurred by the Company or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including without limitation letters of credit in respect to workers' compensation claims or self-insurance, or other Indebtedness with respect to reimbursement type obligations regarding workers' compensation claims; provided, however, that upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;
(xi) Obligations in respect of performance and surety bonds and completion guarantees provided by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(xii) Acquisition Debt of the Company or a Restricted Subsidiary if (w) such Acquisition Debt is incurred within 270 days after the date on which the related definitive acquisition agreement or LMA, as the case may be, was entered into by the Company or such Restricted Subsidiary, (x) the aggregate principal amount of such Acquisition Debt is no greater than the aggregate principal amount of Acquisition Debt set forth in a notice from the Company to the Trustee (an Incurrence Notice) within ten days after the date on which the related definitive acquisition agreement or LMA, as the case may be, was entered into by the Company or such Restricted Subsidiary, which notice shall be executed on the Company's behalf by the chief financial officer of the Company in such capacity and shall describe in reasonable detail the acquisition or LMA, as the case may be, which such Acquisition Debt shall be incurred to finance, (y) after giving pro forma effect to the acquisition or LMA, as the case may be, described in such Incurrence Notice, the Company or such Restricted Subsidiary could have incurred such Acquisition Debt under this Indenture, including compliance with the first paragraph of this covenant, as of the date upon which the Company delivers such Incurrence Notice to the Trustee and (gz) such Acquisition Debt is utilized solely to finance the acquisition or LMA, as the case may be, described in such Incurrence Notice and any other pending acquisitions and/or LMAs previously described in one or more Incurrence Notices (including to repay or refinance indebtedness or other obligations incurred in connection with such acquisition or LMA, as the case may be, and to pay related fees and expenses);
(xiii) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event will be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Company that was not permitted by this clause (xiii); and
(xiv) the incurrence by the Company or any of the Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (xiv), not to exceed $10 million at any 20,000,000. 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 time outstanding, (h) Capital Lease Obligations of the categories of Permitted Debt described in an aggregate principal amount not to exceed $2 million at any one time outstanding, clauses (i) purchase money Indebtedness in an aggregate principal amount not through (xiv) above, or is entitled to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness be incurred pursuant to the Registration Rights Agreement as in effect first paragraph of this Section 4.09, the Company shall be 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. Accrual of interest, accretion or amortization of original issue discount and the accretion of accreted value shall not be deemed to be an incurrence of Indebtedness for purposes of this Section 4.09. Indebtedness under Credit Facilities outstanding on the date on which Notes are first issued and authenticated under this Indenture and shall be deemed to have been incurred on such date in reliance on the exception provided by clause (ki) of the incurrence by the Company and its Subsidiaries definition of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable SubsidiaryPermitted Debt.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCUR"“incur;” with “incurrence” having a correlative meaning) any Indebtedness (including Acquired Debt), and the Company shall will not issue any Disqualified Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) and issue Disqualified Stock, and Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) and issue preferred stock, 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 preferred stock is issued, as the case may be, would have been at least (a) 2.25 to 11.0, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 preferred stock had been issued, as the case may be, at the beginning of such four-quarter period period.
(b) Notwithstanding the foregoing, Section 10.11(a) will not prohibit the incurrence of any of the following (the items of Indebtedness described below in this Section 10.11(b) being referred to collectively as “Permitted Debt”):
(i) the incurrence by the Company and any Restricted Subsidiary of Indebtedness and letters of credit under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (i) (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 the greater of (x) $1.1 billion and (y) 20% of Adjusted Consolidated Net Tangible Assets, determined as of the date of the incurrence of such Indebtedness after giving pro forma effect to such incurrence and the application of the proceeds therefrom;
(ii) such the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company and the Guarantors of Indebtedness is pari passu with or subordinated in right of payment to represented by the Notes and has a Weighted Average Life to Maturity that is greater than or the remaining Weighted Average Life to Maturity Guarantees of the Notes. The foregoing limitations will not apply , to be incurred by the Company and the Guarantors on the Issue Date of the Notes;
(aiv) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of creditfinancing all or any part of the purchase price or cost of design, and construction, installation or improvement of property, plant or equipment used in the business of the Company or any extension, refinancing, renewal, replacement or refunding thereofof its Restricted Subsidiaries, in an aggregate principal amount at amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any one time outstanding Indebtedness incurred pursuant to this clause (iv), not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 50.0 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(bv) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the Existing net proceeds of which are used to refund, refinance, replace, defease or discharge Indebtedness (other than intercompany Indebtedness) or Disqualified Stock of the Company, or Indebtedness (other than intercompany Indebtedness) or preferred stock of a Restricted Subsidiary, in each case that was permitted by this Indenture to be incurred or issued under Section 10.11(a) or clauses (ii), (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notesiii), (div), (v) or (x) of this Section 10.11(b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries; provided, however, that (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 a Restricted Subsidiary and (B) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi);
(vii) 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 are results in any such preferred stock being held by a Person other than the Company or a Restricted Subsidiary; 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, will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary Guarantorsthat was not permitted by this clause (vii);
(viii) the incurrence of obligations of the Company or a Restricted Subsidiary pursuant to Interest Rate and Currency Xxxxxx, in each case entered into in the ordinary course of business for the purpose of limiting risks that arise in the ordinary course of business of the Company and its Restricted Subsidiaries;
(fix) the guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Restricted Subsidiary that was permitted to be incurred by another provision of this covenant; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(x) Permitted Acquisition Indebtedness;
(xi) the incurrence by the Company or any Restricted Subsidiary of Hedging Obligations to protect Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within five Business Days;
(xii) Indebtedness consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company against interest rate risk and the Restricted Subsidiaries;
(xiii) the incurrence by the Company or any Restricted Subsidiary of Indebtedness arising from agreements of the Company or any of its 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 Capital Stock of a Subsidiary, provided that the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the Company and its Restricted Subsidiaries in connection with such disposition;
(xiv) the incurrence by the Company or any Restricted Subsidiary of Indebtedness arising from Guarantees of Indebtedness of joint ventures at any time outstanding not to variable rate exceed the greater of $50.0 million and 1.0% of Adjusted Consolidated Net Tangible Assets determined as of the date of incurrence of such Indebtedness permitted after giving pro forma effect to be incurred such incurrence and the application of proceeds thereof; and
(xv) the incurrence by this Indenture, (g) additional the Company or any of its Restricted Subsidiaries of Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding(or accreted value, as applicable) that, when taken together with all other Indebtedness of the Company outstanding on the date of such incurrence (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, other than Indebtedness permitted by clauses (i) purchase money through (xiv) above or Section 10.11(a)) does not exceed the greater of (x) 2.5% of Adjusted Consolidated Net Tangible Assets determined as of the date of incurrence of such Indebtedness and (y) $125.0 million.
(c) For purposes of determining compliance with this Section 10.11, 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 (i) through (xv) of Section 10.11(b), or is entitled to be incurred pursuant to Section 10.11(a), the Company will be permitted to divide and classify such item of Indebtedness on the date of its incurrence, or later divide and reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 10.11. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in an aggregate principal amount the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will be deemed not to exceed $2 million at be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this covenant; provided, in each such case, that the amount of any one time outstandingsuch accrual, accretion or payment is included in Fixed Charges of the Company as accrued.
(jd) For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness pursuant and issuance of preferred stock, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the Registration Rights Agreement as applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. Notwithstanding any other provision of this Indenture and (k) Section 10.11, the incurrence by maximum amount of Indebtedness that the Company and its Subsidiaries may incur pursuant to this Section 10.11 shall not be deemed to be exceeded solely as a result of Hedging Obligations with respect fluctuations in the exchange rate of currencies. The principal amount of any Permitted Refinancing Indebtedness incurred to long-term refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Permitted Refinancing Indebtedness is denominated that is in effect on the date of an Accounts Receivable Subsidiarysuch refinancing.
Appears in 1 contract
Samples: Third Supplemental Indenture (Plains Exploration & Production Co)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its the Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") after the Issue Date any Indebtedness (including Acquired Debt), ) and the Company shall not issue any Disqualified Stock and shall not permit any of its the Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company and the Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) or issue preferred stock if (i) the Fixed Charge Coverage Ratio for the Company's most recently ended four full fiscal quarters for which internal financial statements are available Reference Period immediately preceding the date on which such additional Indebtedness is incurred would have been at least (a) 2.25 2.0 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 at the beginning of such four-quarter period and (ii) such Reference Period. Indebtedness consisting of reimbursement obligations in respect of a letter of credit shall be deemed to be incurred when the letter of credit is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notesfirst issued. The foregoing limitations will provisions do not apply to to:
(a1) the incurrence by the Company or any of its the Restricted Subsidiaries of revolving credit Indebtedness and letters of credit, and under any extension, refinancing, renewal, replacement one or refunding thereof, more Credit Facilities in an aggregate principal amount at any one time outstanding (with letters of credit being deemed to have a principal amount equal to the Company's or any of the Restricted 42 Subsidiaries' maximum stated reimbursement obligation with respect thereto) pursuant to this clause (1) not to exceed $25 million, less 350,000,000;
(2) the amount incurrence by the Company and the Guarantors of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings Indebtedness represented by the Notes offered on the Issue Date and commitments under the related Exchange Notes and any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, guarantees thereof;
(b3) the incurrence by the Company or any of its the Restricted Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Permitted Refinancing Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, refund defease or defeaserefund, Indebtedness that was permitted by this Indenture to be incurred pursuant to the immediately preceding paragraph or pursuant to clause (bincluding, without limitation, Existing Indebtedness), ;
(c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (14) the principal amount of such Refinancing Indebtedness shall not exceed incurrence by the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded Company or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity any of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity Restricted Subsidiaries of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries the Restricted Subsidiaries; provided that are any subsequent issue or transfer of Capital Stock or other event that results in such Restricted Subsidiary Guarantorsceasing to be a Restricted Subsidiary or any subsequent transfer of any such Indebtedness (except to the Company or a Restricted Subsidiary shall be deemed, in each case, to constitute the incurrence of such Indebtedness by the issuer thereof not permitted by this clause (f4));
(5) the incurrence by the Company or any of the Restricted Subsidiaries of Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging interest rate or currency risk with respect to variable any fixed or floating rate Indebtedness that is permitted by this Indenture to be outstanding or any receivable or liability the payment of which is determined by reference to a foreign currency; provided that the notional principal amount of any such Hedging Obligation does not exceed the principal amount of the Indebtedness or the amount of such receivable or liability to which such Hedging Obligation relates;
(6) the incurrence by the Company or any of the Restricted Subsidiaries of Indebtedness represented by performance bonds, warranty or contractual service obligations, standby letters of credit or appeal bonds, in each case to the extent incurred in the ordinary course of business of the Company or the Restricted Subsidiary;
(7) the incurrence by Receivables Subsidiaries of Indebtedness not to exceed $125,000,000 in the aggregate at any time outstanding;
(8) the incurrence by the Company or any Guarantor of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations (including borrowings under a Credit Facility), in each case, incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction, development, maintenance, upgrade or improvement of property, plant, equipment or assets (in each case whether through the direct purchase of assets or through the purchase of Capital Stock of the Person owning such assets) used in the Company's business or the business of such Guarantor, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (8), not to exceed, at any time outstanding the greater of (a) $70,000,000 and (b) 5% of Total Assets;
(9) the Company's or any of the Restricted Subsidiaries' 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, provided that such Indebtedness is satisfied within five Business Days;
(10) the guarantee by the Company or any Guarantor of the Company's Indebtedness or Indebtedness of a Guarantor that was permitted to be incurred by another provision of this Indenture, Section 4.09;
(g11) additional contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit collection or overdraft protection in the ordinary course of business;
(12) Indebtedness arising from guarantees of Obligations of Permitted Joint Ventures of the Company or any of the Restricted Subsidiaries in an aggregate principal amount not to exceed $10 million 10,000,000 at any one time outstanding, time;
(h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date of this Indenture and (k13) the incurrence by the Company and its or any of the Restricted Subsidiaries of Hedging Obligations Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed $125,000,000; and
(14) the Company's and the Restricted Subsidiaries' obligations arising from the Company's or the Restricted Subsidiaries' agreements providing for indemnification, adjustment of purchase price or similar obligations, in each case incurred or assumed in connection with the disposition of any business, assets or any of the Company's Subsidiaries in accordance with the terms of this Indenture, other than Guarantees by the Company or any of the Restricted Subsidiaries of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or any of the Company's Subsidiaries for the purpose of financing such acquisition; provided, however, that the maximum aggregate liability in respect of all such obligations shall not exceed the gross proceeds, including the fair market value of non-cash proceeds (the fair market value of such non-cash proceeds being measured at the time it is received and without giving effect to any subsequent changes in value), actually received by the Company and the Restricted Subsidiaries in connection with such disposition. For purposes of determining any particular amount of Indebtedness under this Section 4.09, guarantees, Liens or obligations with respect to long-term letters of credit supporting Indebtedness otherwise included in the determination of such particular amount shall not be included. For purposes of determining compliance with this Section 4.09,
(1) in the event that an Accounts Receivable Subsidiaryitem of Indebtedness meets the criteria of more than one of the types of Indebtedness permitted by the second paragraph of this Section 4.09, the Company may in its sole discretion, (x) divide and classify such item of Indebtedness on the date of incurrence thereof, or (y) later classify, reclassify or divide all or a portion of such item of Indebtedness in any manner that complies with this Section 4.09;
(2) the outstanding principal amount on any date of any Indebtedness issued with original issue discount is the face amount of such Indebtedness less the remaining unamortized portion of the original issue discount of such Indebtedness on such date;
(3) the payment of dividends on Redeemable Capital Stock in the form of additional shares of the same class of Redeemable Capital Stock shall not be deemed an issuance of Redeemable Capital Stock;
(4) the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to the covenant shall not be deemed to be exceeded as a result of fluctuation in the exchange rates of currencies;
(5) in connection with any Receivables Financing, the outstanding principal amount of Indebtedness shall be the Securitization Financing Amount; and
(6) the outstanding principal amount of Indebtedness with respect to Redeemable Capital Stock shall be measured as the greater of the voluntary or involuntary maximum fixed repurchase price or liquidation value on the date of determination, but excluding any accrued dividends for any current period that are not yet payable. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest and dividends on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment or accrual of dividends on Redeemable Stock or preferred stock in the form of additional shares of the same class of 44 Redeemable Stock or preferred stock shall not be deemed to be an incurrence of Indebtedness or an issuance of Redeemable Stock or preferred stock for purposes of this Section 4.09. Indebtedness outstanding under the Credit Agreement on the Issue Date shall be deemed to be incurred under the first paragraph of this Section 4.09.
Appears in 1 contract
Samples: Indenture (Beverly Enterprises Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and the Company shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that so long as no Default or Event of Default has occurred or is continuing, the Company and its Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) if (i) 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 would have been at least (a) 2.25 1.75 to 1, if such date additional Indebtedness is 42 incurred prior to August March 15, 1995 and (b) 2.50 2000, or at least 2.0 to 1 thereafter1, if such additional Indebtedness is incurred on or after March 15, 2000, in each case 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 at the beginning of such four-quarter period and (ii) period. The Company shall not incur any Indebtedness that is contractually subordinated in right of payment to any other Indebtedness of the Company unless such Indebtedness is pari passu with or also contractually subordinated in right of payment to the Senior Secured Discount Notes and has a Weighted Average Life to Maturity on substantially identical terms; provided, however, that is greater than the remaining Weighted Average Life to Maturity no Indebtedness of the NotesCompany shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company solely by virtue of being unsecured. The foregoing limitations will provisions of the first paragraph of this covenant shall not apply to the incurrence of any of the following items of Indebtedness (acollectively, "Permitted Debt"):
(i) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness from a bank or other financial institution in an aggregate principal amount not to exceed $200.0 million at any one time outstanding, less any Net Proceeds of Asset Sales applied to permanently reduce any such Indebtedness pursuant to Section 4.10 hereof;
(ii) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness, other than pursuant to the Xxxxx Credit Facility or the Sweetheart Credit Facilities;
(iii) the incurrence by the Company of Indebtedness represented by the Senior Secured Discount Notes and this Indenture;
(iv) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the purpose of creditfinancing all or any part of the purchase price or cost of construction or improvement of property, and any extension, refinancing, renewal, replacement plant or refunding thereofequipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 5.0 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(bv) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in connection with the Existing Indebtedness, (c) acquisition of assets or a new Restricted Subsidiary; provided that such Indebtedness was incurred by the incurrence prior owner of such assets or such Restricted Subsidiary prior to such acquisition by the Company or one of its Restricted Subsidiaries and its Subsidiaries of Indebtedness represented was not incurred in connection with, or in contemplation of, such acquisition by the Notes Company or one of its Restricted Subsidiaries; and provided further that the Senior Notesprincipal amount (or accreted value, as applicable) of such Indebtedness, together with any other outstanding Indebtedness incurred pursuant to this clause (dv) and any Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (v), does not exceed $5.0 million;
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to extendrefund, refinance, renew, replace, refund refinance or defease, replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred pursuant to under the immediately preceding first paragraph hereof or pursuant to clause clauses (bii), (ciii), (iv) or (gv) of this paragraph paragraph;
("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1vii) the principal amount incurrence by the Company or any of such Refinancing Indebtedness shall not exceed the principal amount its Restricted Subsidiaries of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries Restricted Subsidiaries; provided, however, that are (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 a Restricted Subsidiary Guarantorsthereof and (b) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (fvii);
(viii) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging interest rate risk with respect to variable any floating rate Indebtedness that is permitted by the terms of this Indenture to be incurred outstanding; and
(ix) the incurrence by this Indenture, (g) the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) not to exceed $10 25.0 million at any one time outstanding. For purposes of determining compliance with this covenant, (h) Capital Lease Obligations in the event that an aggregate principal amount not to exceed $2 million at any item of Indebtedness meets the criteria of more than one time outstanding, of the categories of Permitted Debt described in clauses (i) purchase money through (ix) above or is entitled to be incurred pursuant to the first paragraph of this covenant, the Company shall, in its sole discretion, classify such item of Indebtedness in any manner that complies with this covenant. Accrual of interest, accretion or amortization of original issue discount, and the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms shall not be deemed to be an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date for purposes of this Indenture and (k) Section; provided, in each such case, that the incurrence by amount thereof is included in Fixed Charges of the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable Subsidiaryas accrued.
Appears in 1 contract
Samples: Indenture (Sf Holdings Group Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur" or an "incurrence") any Indebtedness (including Acquired Debt), and that the Company shall will not issue any Disqualified Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company and its Restricted Subsidiaries may incur Indebtedness Indebtedness, and the Company may issue Disqualified Stock, if (i) 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 is issued would have been at least (a) 2.25 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, in each case 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 and (ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notesperiod. The foregoing limitations will provisions shall not apply to to:
(a) the incurrence by the Company or any of and its Restricted Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, under the Credit Facilities in an aggregate principal amount at any one time outstanding not to exceed $25 million50.0 million (or the 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;
(b) the amount incurrence by the Company and its Restricted Subsidiaries of Net Proceeds Existing Indebtedness;
(c) the incurrence by the Company and its Restricted Subsidiaries of Asset Sales 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 have been applied to permanently reduce borrowings and commitments under any subsequent issuance or transfer of Equity Interests that results in any such facilityIndebtedness being held by a Person other than the Company or a Wholly Owned Restricted Subsidiary of the Company, PROVIDED or any sale or other transfer of any such Indebtedness to a Person that is neither the proceeds Company nor a Wholly Owned Restricted Subsidiary of the Company, shall be deemed to constitute an incurrence of such Indebtedness are not used by the Company or such Restricted Subsidiary, as the case may be;
(f) Indebtedness in respect of bid, performance or surety bonds issued for acquisitions the account of the Company or other expenditures not 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 (bin each case other than for an obligation for money borrowed); and
(g) the incurrence by the Company or any of its Restricted Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Permitted Refinancing Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund or defease, Indebtedness that was permitted by this Indenture to be incurred pursuant to the immediately preceding paragraph or (other than pursuant to clause (b), (ca) or (ge) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (f) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable Subsidiary.Section 4.09
Appears in 1 contract
Samples: Indenture (Pumpkin Air Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable with respect to (collectively, "INCUR") Incur any Indebtedness (including Acquired Debt), ) and the Company shall and any Guaranteeing Subsidiary will not issue any Disqualified Stock and shall will not permit any of its their respective Restricted Subsidiaries that are not Guaranteeing Subsidiaries to issue any shares of preferred stock; PROVIDED, HOWEVER, that the Company and any Guaranteeing Subsidiary may incur Incur Indebtedness or issue shares of Disqualified Stock, if (i) 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 is issued would have been at least (ax) 2.25 to 1 if such incurrence or issuance occurs on or before December 1, 1999, or (y) 2.5 to 1 if such date is prior to August 15, 1995 and (b) 2.50 to 1 incurrence or issuance occurs at any time thereafter, in each case 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 incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period and (ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notesperiod. The foregoing limitations provisions will not apply to any of the following (aeach and all of which (1) may be issued or incurred, (2) constitutes an independent exception to the foregoing provisions and (3) may be incurred in addition to any other Indebtedness permitted to be incurred under any other exception): (i) the incurrence by the Company or any Guaranteeing Subsidiary of Indebtedness and letters of credit pursuant to any New Credit Facility (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company or the relevant Guaranteeing Subsidiary thereunder) in an aggregate principal amount outstanding at any one time not to exceed $265.0 million (A) LESS the aggregate amount of all mandatory repayments (a "Mandatory Repayment") of the principal of any term Indebtedness under the New Credit Facility that have been made since the date of the Indenture pursuant to the amortization schedule of any New Credit Facility (other than any Mandatory Repayment made concurrently with refinancing or refunding of the New Credit Facility), (B) PLUS the Excess Amount and (C) LESS the aggregate amount of all Net Proceeds of Asset Sales applied pursuant to clause (b) or (c) of the first sentence of the second paragraph under Section 4.10 hereof to permanently reduce Indebtedness (and, in the case of revolving Indebtedness, the commitments) under the New Credit Facility or to cash collateralize letters of credit and permanently reduce commitments with respect to revolving Indebtedness under the New Credit Facility; PROVIDED that the amount of Indebtedness permitted to be incurred pursuant to the New Credit Facility in accordance with this clause (i) shall be in addition to any Indebtedness permitted to be incurred pursuant to the New Credit Facility or otherwise in reliance on, and in accordance with, clause (ix) of this paragraph; (ii) the incurrence by the Company and any Guaranteeing Subsidiary of Indebtedness represented by the Notes and any Subsidiary Guarantee; (iii) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness (A) represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company or such Restricted Subsidiary or (B) in connection with sale and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereofleaseback transactions, in an aggregate principal amount at any one time outstanding with respect to this clause (iii) not to exceed $25 million, less 20.0 million at any time outstanding; PROVIDED THAT in no event shall the aggregate principal amount of Net Proceeds of Asset Sales that have been applied Indebtedness incurred pursuant to permanently reduce borrowings and commitments under clause (iii)(B) exceed $5.0 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding; (biv) Existing Indebtedness; (v) the incurrence by the Company or any of its Restricted Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Permitted Refinancing Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, refund defease or defeaserefund, Indebtedness incurred pursuant to that was permitted by the immediately preceding paragraph or pursuant to clause Indenture; (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1vi) the principal amount incurrence by the Company or any of such Refinancing Indebtedness shall not exceed the principal amount its Restricted Subsidiaries of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries; PROVIDED, HOWEVER, that (a) any subsequent issuance or transfer (other than for security purposes) of Equity Interests and (b) any subsequent sale or other transfer (including for security purposes other than to secure Indebtedness permitted to be incurred pursuant to clause (i) of this paragraph) of such Indebtedness, in each case, that results in any such Indebtedness being held by a Person other than the Company or any of its Restricted Subsidiaries that are Subsidiary Guarantorsshall be deemed to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, not permitted pursuant to this clause (fvi); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging (a) interest rate risk with respect to variable any floating rate Indebtedness of such Person so long as such floating rate Indebtedness is permitted by the terms of the Indenture to be outstanding or (b) exchange rate risk with respect to agreements or indebtedness of such Person payable or denominated in a currency other than U.S. dollars; (viii) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt; PROVIDED, HOWEVER, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Company; (ix) the incurrence by the Company and any Guaranteeing Subsidiary of Indebtedness in an aggregate principal amount at any time outstanding not to exceed $25.0 million; (x) the incurrence by any Foreign Subsidiary of Indebtedness and letters of credit to fund working capital and capital expenditure requirements (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of such Foreign Subsidiary thereunder) in an aggregate maximum principal amount outstanding at any one time not to exceed $15.0 million; (xi) Obligations in respect of performance and surety bonds provided by the Company or any Guaranteeing Subsidiary in the ordinary course of business; and (xii) the incurrence or issuance by any Restricted Subsidiary of the Company of Indebtedness or preferred stock (in addition to Indebtedness and preferred stock that may be incurred by or issued pursuant to any other clause of this Indenture, (gparagraph) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable Subsidiary1.0 million.
Appears in 1 contract
Samples: Indenture (Advanced Medical Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCUR"“incur”) any Indebtedness (including Acquired Debt), and the Company shall will not issue any Disqualified Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and the Guarantors may incur Indebtedness (including Acquired Debt) or issue preferred stock, if (i) the Fixed Charge Company’s Consolidated 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 would have been be at least (a) 2.25 2.0 to 11.0, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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, at the beginning of such four-quarter period period.
(b) The provisions of Section 4.09(a) hereof will not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):
(1) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries under Credit Facilities in an aggregate amount at any time outstanding not to exceed the greater of (x) $300.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any of its Restricted Subsidiaries since the Issue Date to repay any term Indebtedness under a Credit Facility incurred in reliance on this clause (1) or to repay any revolving credit Indebtedness under a Credit Facility incurred in reliance on this clause (1) and effect a corresponding commitment reduction thereunder to the extent required by Section 4.10 hereof or (y) the Borrowing Base as of the date of such incurrence;
(2) Existing Indebtedness other than Indebtedness incurred under clauses (1) and (ii3) such of this Section 4.09(b) on the Issue Date;
(3) the incurrence by the Company and the Guarantors of Indebtedness is pari passu with or subordinated in right of payment to represented by the Notes and has a Weighted Average Life the related Note Guarantees to Maturity that is greater than be issued on the remaining Weighted Average Life to Maturity of the Notes. The foregoing limitations will not apply to Issue Date;
(a4) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of creditfinancing all or any part of the purchase price or cost of design, and construction, installation or improvement of property, plant or equipment used in the business of the Company or any extension, refinancing, renewal, replacement or refunding thereofof its Restricted Subsidiaries, in an aggregate principal amount at amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any one time outstanding Indebtedness incurred pursuant to this clause (4), not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 25.0 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(b5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the Existing net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a) hereof or clause (2), (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes3), (d4), (5), (12), (13) or (15) of this Section 4.09(b);
(6) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries; provided, however, that:
(a) if the Company or any Guarantor is the obligor on such Indebtedness and the payee is not the Company or a Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor; and
(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 an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was 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 are results in any such preferred stock being held by a Person other than the Company or a Restricted Subsidiary Guarantorsof 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 an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (f7);
(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 by the Company or any Restrictive Subsidiary 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, in the case of a Guarantee of any Restricted Subsidiary that is not a Guarantor, such Restricted Subsidiary complies with Section 4.17;
(10) the incurrence by the Company or any of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, (g) additional its Restricted Subsidiaries of Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstandingrespect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance and surety bonds in the ordinary course of business;
(h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date of this Indenture and (k11) 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 drawn against insufficient funds, so long as such Indebtedness is covered within five Business Days;
(12) Indebtedness of a Restricted Subsidiary incurred and outstanding on or prior to the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness incurred in contemplation of, or in connection with, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary of or was otherwise acquired by the Company); provided, however, that on the date that such Restricted Subsidiary is acquired by the Company, either (a) the Company would have been able to incur $1.00 of additional Indebtedness pursuant to Section 4.09(a) hereof, or (b) the Consolidated Coverage Ratio of the Company and the Restricted Subsidiaries is equal to or greater than immediately prior to the acquisition of such Restricted Subsidiary, in each case after giving effect to the incurrence of such Indebtedness pursuant to this clause (12);
(13) the incurrence by Non-Guarantor Restricted Subsidiaries of Indebtedness in an aggregate amount at any time outstanding pursuant to this clause (13), including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (13), not to exceed $75.0 million;
(14) the incurrence of Indebtedness arising from agreements of the Company or any of its 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 Capital Stock of a Restricted Subsidiary; provided that the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the Company and its Restricted Subsidiaries in connection with such disposition; and
(15) the incurrence by the Company or its Restricted Subsidiaries of Hedging Obligations additional Indebtedness or the issuance by any of the Company’s Restricted Subsidiaries of shares of preferred stock in an aggregate amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (15), not to exceed $50.0 million. For purposes of determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness, Disqualified Stock or preferred stock meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (15) above, or is entitled to be incurred pursuant to Section 4.09(a) hereof, the Company will be permitted to classify such item of Indebtedness, Disqualified Stock or preferred stock on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, Disqualified Stock or preferred stock in any manner that complies with this Section 4.09. Indebtedness under Credit Facilities outstanding on the date on which Notes are first issued and authenticated under this Indenture (after giving effect to the issuance of the Notes, the application of the proceeds thereof and the incurrence of any Indebtedness under Credit Facilities on such date) will initially be deemed to have been incurred on such date in reliance on the exception provided by clause (1) of the definition of Permitted Debt. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09; provided, in each such case, that the amount of any such accrual, accretion or payment is included in Consolidated Interest Expense of the Company as accrued. For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness where the Indebtedness to be incurred is denominated in a different currency, (1) the amount of such Indebtedness shall be the U.S. Dollar Equivalent determined on the date of the incurrence of such Indebtedness and (2) in the case of any Permitted Refinancing Indebtedness incurred in the same currency as the Indebtedness being refinanced, the principal amount thereof shall be the U.S. Dollar Equivalent of the Indebtedness being refinanced, except to the extent that the principal amount of the Permitted Refinancing Indebtedness exceeds the principal amount of the Indebtedness being refinanced, in which case the U.S. Dollar Equivalent of such excess principal amount shall be determined on the date such Permitted Refinancing Indebtedness is incurred. Notwithstanding any other provision of this Section 4.09, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values subsequent to the incurrence of such Indebtedness.
(c) The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(2) principal amount of the Indebtedness, in the case of any other Indebtedness; and
(3) in respect to long-term of Indebtedness of an Accounts Receivable Subsidiaryanother Person secured by a Lien on the assets of the specified Person, the lesser of:
(a) the Fair Market Value of such assets at the date of determination; and
(b) the amount of the Indebtedness of the other Person.
Appears in 1 contract
Samples: Indenture (Georgia Gulf Corp /De/)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and that the Company shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company and any Restricted Subsidiary may incur Indebtedness (including Acquired Debt) or issue shares of preferred stock if (i) 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 preferred stock is issued would have been at least (a) 2.25 2.0 to 11.0, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 incurred, or the preferred stock had been issued, as the case may be, at the beginning of such four-quarter period period. The provisions of the first paragraph of this Section 4.09 shall not apply to the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(i) the incurrence by the Company of additional Indebtedness under Credit Facilities (and the guarantee thereof by the Guarantors) in an aggregate principal amount outstanding pursuant to this clause (i) at any one time (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), including all Permitted Refinancing Indebtedness then outstanding incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (i), not to exceed $750.0 million less the aggregate amount of all Net Proceeds of Asset Sales applied to repay any such Indebtedness pursuant to Section 4.10;
(ii) such Indebtedness is pari passu with or subordinated the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company and the Guarantors of $750.0 million in right aggregate principal amount of payment to each of the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of Exchange Notes and the Notes. The foregoing limitations will not apply to Subsidiary Guarantees thereof;
(aiv) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the purpose of creditfinancing all or any part of the purchase price or cost of construction or improvement of property, and any extension, refinancing, renewal, replacement plant or refunding thereofequipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount at amount, including all Permitted Refinancing Indebtedness then outstanding incurred to refund, refinance or replace any one time outstanding other Indebtedness incurred pursuant to this clause (iv), not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 100.0 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(bv) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in connection with the Existing Indebtedness, (c) acquisition of assets or a new Restricted Subsidiary; provided that such Indebtedness was incurred by the incurrence prior owner of such assets or such Restricted Subsidiary prior to such acquisition by the Company or one of its Restricted Subsidiaries and its Subsidiaries of Indebtedness represented was not incurred in connection with, or in contemplation of, such acquisition by the Notes Company or one of its Restricted Subsidiaries; and provided further that the Senior Notesprincipal amount (or accreted value, as applicable) of such Indebtedness, together with any other outstanding Indebtedness incurred pursuant to this clause (dv), does not exceed $50.0 million;
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to extendrefund, refinance, renew, refinance or replace, refund Indebtedness that was permitted by this Indenture to be incurred (other than intercompany Indebtedness or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (bi) above);
(vii) Indebtedness incurred by the Company or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business in respect of workers' compensation claims or self-insurance, or other Indebtedness with respect to reimbursement type obligations regarding workers' compensation claims; provided, however, that 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;
(cviii) Indebtedness arising from agreements of the Company or (g) a Restricted Subsidiary providing for indemnification, adjustment of this paragraph ("REFINANCING INDEBTEDNESS")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; PROVIDEDprovided, HOWEVERhowever, that (1A) such Indebtedness is not reflected on the balance sheet of the Company or any Restricted Subsidiary (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet shall not be deemed to be reflected on such balance sheet for purposes of this clause (A)) and (B) the principal amount maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including noncash proceeds (the fair market value of such Refinancing Indebtedness shall not exceed noncash proceeds being measured at the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, time received and without giving effect to any subsequent changes in value) actually received by the Company and its Restricted Subsidiaries in connection with such disposition;
(2ix) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to incurrence by the Company or greater than either (x) the remaining Weighted Average Life to Maturity any of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity its Restricted Subsidiaries of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries; provided, however, that (A) 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 (B)(1) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or one of its Restricted Subsidiaries and (2) any sale or other transfer of any such Indebtedness to a Person that are Subsidiary Guarantorsis not either the Company or one of its Restricted Subsidiaries 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;
(fx) the incurrence by the Company or any of the Guarantors of Hedging Obligations to protect that are incurred for the Company against purpose of (A) fixing, hedging or capping interest rate risk with respect to variable any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding or (B) protecting the Company and its Restricted Subsidiaries against changes in currency exchange rates;
(xi) the guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this IndentureSection 4.09;
(xii) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Company that was not permitted by this clause (gxii), and the issuance of preferred stock by Unrestricted Subsidiaries;
(xiii) obligations in respect of performance and surety bonds and completion guarantees provided by the Company or any Restricted Subsidiaries in the ordinary course of business; and
(xiv) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness then outstanding incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (xiv), not to exceed $10 million at any 100.0 million. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness meets the criteria of more than one time outstanding, (h) Capital Lease Obligations of the categories of Permitted Debt described in an aggregate principal amount not to exceed $2 million at any one time outstanding, clauses (i) purchase money through (xiv) above or is entitled to be incurred pursuant to the first paragraph of this Section 4.09, the Company shall, in its sole discretion, classify, or later reclassify, such item of Indebtedness in any manner that complies with this covenant. Accrual of interest, the accretion of accreted value and the payment of interest in the form of additional Indebtedness shall not be deemed to be an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date for purposes of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable SubsidiarySection 4.09.
Appears in 1 contract
Samples: Indenture (Eer Systems Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur" or an "incurrence") any Indebtedness (including Acquired Debt), and that the Company shall will not issue any Disqualified Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company and its Restricted Subsidiaries may incur Indebtedness Indebtedness, and the Company may issue Disqualified Stock, if (i) 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 is issued would have been at least (a) 2.25 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, in each case 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-four- quarter period and (ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notesperiod. The foregoing limitations will provisions shall not apply to to:
(a) the incurrence by the Company or any of and its Restricted Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, under the Credit Facility in an aggregate principal amount at any one time outstanding not to exceed $25 65.0 million, 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;
(b) the amount incurrence by the Company and its Restricted Subsidiaries of Net Proceeds Existing Indebtedness;
(c) the incurrence by the Company and its Restricted Subsidiaries of Asset Sales Hedging Obligations;
(d) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness represented by the Notes, the Subsidiary Guarantees, this Indenture, the Series A/B Notes, the Series A/B Subsidiary Guarantees, and the Series A/B Indenture;
(e) the incurrence of intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries, provided that have been applied to permanently reduce borrowings and commitments under any subsequent issuance or transfer of Equity Interests that results in any such facilityIndebtedness being held by a Person other than the Company or a Wholly Owned Restricted Subsidiary of the Company, PROVIDED or any sale or other transfer of any such Indebtedness to a Person that is neither the proceeds Company nor a Wholly Owned Restricted Subsidiary of the Company, shall be deemed to constitute an incurrence of such Indebtedness are not used by the Company or such Restricted Subsidiary, as the case may be;
(f) Indebtedness in respect of bid, performance or surety bonds issued for acquisitions the account of the Company or other expenditures not 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 (bin each case other than for an obligation for money borrowed); and
(g) the incurrence by the Company or any of its Restricted Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Permitted Refinancing Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund or defease, Indebtedness that was permitted by this Indenture to be incurred pursuant to the immediately preceding paragraph or (other than pursuant to clause (b), (ca) or (ge) of this paragraph ("REFINANCING INDEBTEDNESS"Section 4.09); PROVIDED, HOWEVER, . In the event that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (f) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of any Indebtedness pursuant would be permitted by the first paragraph set forth above or one or more of the provisions set forth in the second paragraph above, the Company may designate (in the form of an Officers' Certificate delivered to the Registration Rights Agreement as in effect on Trustee) the date particular provision of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect pursuant to long-term Indebtedness of an Accounts Receivable Subsidiarywhich it is incurring such Indebtedness.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), and the Company shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company or any Guarantor may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, if (i) 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 preferred stock is issued would have been at least (a) 2.25 2.0 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 preferred stock or Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period and (ii) such Indebtedness is pari passu with or subordinated in right period. The first paragraph of payment to this covenant shall not prohibit the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity incurrence of any of the Notes. The foregoing limitations will not apply to following items of Indebtedness (collectively, "Permitted Debt").
(a) the incurrence by the Company or any of its Subsidiaries the Guarantors of revolving credit additional Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereofcredit under Credit Facilities, in an aggregate principal amount at any one time outstanding under this clause (a) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and the Guarantors thereunder) not to exceed the greater of:
(1) $25 million, 100.0 million less the aggregate amount of all Net Proceeds of Asset Sales that have been applied by the Company or any of its Restricted Subsidiaries since the date hereof to permanently reduce borrowings repay term Indebtedness under a Credit Facility or to repay revolving credit Indebtedness and commitments under any such facilityeffect a corresponding commitment reduction thereunder, PROVIDED that in each case, pursuant to Section 4.10; or
(2) the proceeds amount of the Borrowing Base as of the date of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, incurrence;
(b) the incurrence by the Company or any of and its Restricted Subsidiaries of the Existing Indebtedness, ;
(c) the incurrence by the Company and its Subsidiaries the Guarantors of Indebtedness represented by the Notes and the Senior Notes, related Note Guarantees to be issued on the date hereof and the Exchange Notes and the related Note Guarantees to be issued pursuant to the Registration Rights Agreement;
(d) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (d), not to exceed, at any time outstanding, the greater of (a) $15.0 million or (b) 5% of Consolidated Net Tangible Assets;
(e) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extendrefund, refinance, renew, replace, refund refinance or defease, replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred pursuant to under the immediately preceding first paragraph of this covenant or pursuant to clause clauses (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"d), (e), or (k) of this paragraph;
(f) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries Restricted Subsidiaries; provided, however, that:
(1) if the Company or any Guarantor is the obligor on such Indebtedness, 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 Note Guarantee, in the case of a Guarantor; and
(i) any subsequent issuance or transfer of Equity Interests that are results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary Guarantorsof 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 shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (f);
(g) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations to protect in the ordinary course of business and not for speculative purposes;
(h) the guarantee by the Company against interest rate risk with respect to variable rate or any of the Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, Section 4.09;
(i) purchase money the accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock shall not be deemed to be an aggregate principal incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this covenant; provided, in each such case, that the amount not to exceed $2 million at any one time outstanding, thereof is included in Fixed Charges of the Company as accrued;
(j) the incurrence by a Securitization Entity of Indebtedness pursuant in a Qualified Securitization Transaction that is non-recourse to the Registration Rights Agreement as in effect on Company or any Restricted Subsidiary of the date of this Indenture and Company (except for Standard Securitization Undertakings); and
(k) the incurrence by the Company and or any of its Restricted Subsidiaries of Hedging Obligations with respect additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to long-term refund, refinance or replace any Indebtedness incurred pursuant to this clause (k), not to exceed $25.0 million. Notwithstanding the foregoing, the Company shall not, and shall not permit any Guarantor to, incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Guarantee on substantially identical terms; provided, however, that no Indebtedness of the Company or any Guarantor shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company or any Guarantor solely by virtue of being unsecured. For purposes of determining compliance with Section 4.09, in the event that an Accounts Receivable Subsidiaryitem of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (a) through (k) above, or is entitled to be incurred pursuant to the first paragraph of this Section 4.09, the Company shall be permitted to classify such item of Indebtedness on the date of its incurrence in any manner that complies with this covenant.
Appears in 1 contract
Samples: Indenture (Plastipak Holdings Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, and the Guarantor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), and the Company and the Guarantor shall not issue any Disqualified Stock and shall not permit any of its their Restricted Subsidiaries to issue any shares of preferred stock; PROVIDED, HOWEVER, that stock unless the Company may incur Indebtedness if (i) the Fixed Charge Coverage Leverage 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 would have been at least (a) 2.25 not greater than 8.75 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, in each case 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 incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of the most recently ended fiscal quarter. So long as no Default shall have occurred and be continuing or would be caused thereby, the first paragraph of this covenant shall not prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(1) the incurrence by the Company and its Restricted Subsidiaries and the Guarantor and its Restricted Subsidiaries of Indebtedness under the Credit Facilities; provided that the aggregate principal amount of all Indebtedness of the Company and its Restricted Subsidiaries and the Guarantor and its Restricted Subsidiaries outstanding under all Credit Facilities after giving effect to such four-quarter period incurrence does not exceed an amount equal to $3.5 billion less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any of its Subsidiaries or the Guarantor or any of its Subsidiaries, as the case may be, in the case of an Asset Sale since the date of this Indenture to repay Indebtedness under a Credit Facility pursuant to Section 4.11;
(2) the incurrence by the Company and its Restricted Subsidiaries and the Guarantor and its Restricted Subsidiaries of Existing Indebtedness (iiother than the Credit Facilities);
(3) such the incurrence on the Issue Date by the Company and its Restricted Subsidiaries and the Guarantor and its Restricted Subsidiaries of Indebtedness is pari passu with or subordinated in right of payment to represented by the Notes, the Other Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notes. The foregoing limitations will not apply to related Guarantees;
(a4) the incurrence by the Company or any of its Restricted Subsidiaries or the Guarantor or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of creditfinancing all or any part of the purchase price or cost of construction or improvement (including, without limitation, the cost of design, development, construction, acquisition, transportation, installation, improvement, and migration) of Productive Assets of the Company or any extension, refinancing, renewal, replacement of its Restricted Subsidiaries or refunding thereofthe Guarantor or any of its Restricted Subsidiaries, in an aggregate principal amount at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 75 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(b5) the incurrence by the Company or any of its Restricted Subsidiaries or the Guarantor or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the Existing net proceeds of which are used to refund, refinance or replace, in whole or in part, Indebtedness (other than intercompany Indebtedness, ) that was permitted by this Indenture to be incurred under the first paragraph of this covenant or clauses (c2) the incurrence by the Company and its Subsidiaries or (3) of Indebtedness represented by the Notes and the Senior Notes, this paragraph;
(d6) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange for, or the proceeds Guarantor or any of which are used to extendits Restricted Subsidiaries, refinanceas the case may be, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between 48 55 or among the Company and any of its Wholly Owned Restricted Subsidiaries, or the Guarantor or any of its Restricted Subsidiaries, respectively; provided that except for the Mirror Note, this clause does not permit Indebtedness between the Company or any of its Restricted Subsidiaries, as creditor or debtor, as the case may be, and the Guarantor or any of its Restricted Subsidiaries, as debtor or creditor, as the case may be, unless otherwise permitted by the Indentures; provided, further, that:
(a) if the Company or the Guarantor is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes in the case of the Company, or the Guarantee of such Guarantor, in the case of the Guarantor; and
(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 Wholly Owned Restricted Subsidiary thereof or the Guarantor or a Wholly Owned Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Restricted Subsidiary thereof or the Guarantor or a Wholly Owned Restricted Subsidiary thereof, shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or any of its Restricted Subsidiaries or the Guarantor or any of its Restricted Subsidiaries, respectively, as the case may be, that are Subsidiary Guarantors, was not permitted by this clause (f6);
(7) the incurrence by the Company or any of its Restricted Subsidiaries or the Guarantor or any of its Restricted Subsidiaries, of Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging interest rate risk with respect to variable any floating rate Indebtedness that is permitted by the terms of the Indentures to be outstanding;
(8) the guarantee by the Company or the Guarantor of Indebtedness of the Company or a Restricted Subsidiary of the Company, or Indebtedness of the Guarantor or a Restricted Subsidiary of the Guarantor, that was permitted to be incurred by another provision of this IndentureSection 4.10;
(9) the incurrence by the Company or any of its Restricted Subsidiaries, (g) or the Guarantor or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount at any time outstanding, not to exceed $10 million at 300 million;
(10) the incurrence by the Company or any one time outstandingof its Restricted Subsidiaries, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at or the Guarantor or any one time outstandingof its Restricted Subsidiaries, (i) purchase money of additional Indebtedness in an aggregate principal amount at any time outstanding, not to exceed $2 million at any one time outstanding, 200% of the net cash proceeds received by the Company from the sale of its Equity Interests (jother than Disqualified Stock) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on after the date of this Indenture and to the extent such net cash proceeds have not been applied to make Restricted Payments or to effect other transactions pursuant to Section 4.07 or to make Permitted Investments pursuant to clause (k6) of the definition thereof;
(11) the incurrence by accretion or amortization of original issue discount and the Company and its Subsidiaries write up of Hedging Obligations Indebtedness in accordance with respect to long-term purchase accounting; and
(12) Indebtedness of an Accounts Receivable Subsidiaryunder the Mirror Note.
Appears in 1 contract
Samples: Indenture (Charter Communications Holdings Capital Corp)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and that the Company shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness or issue shares of Disqualified Stock if (i) 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 is issued would have been at least (a) 2.25 2.0 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period and (ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notesperiod. The foregoing limitations will shall not apply to: (i) the incurrence by the Company of Senior Bank Debt; (ii) Guarantees of the Senior Bank Debt permitted under or required by the Credit Agreement and Guarantees permitted under or required by this Indenture; (iii) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness; (iv) the incurrence by the Company of Indebtedness represented by the Notes and this Indenture, and the incurrence by Restricted Subsidiaries of Guarantees required or permitted to be incurred under this Indenture; (av) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Capital Lease Obligations and/or additional Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, constituting purchase money obligations in an aggregate principal amount not to exceed $5.0 million at any time outstanding; (vi) the incurrence by the Company of additional Indebtedness for any corporate purposes in an outstanding principal amount (or accreted value, as applicable) at no time exceeding $25.0 million (which may, but need not be, borrowed under the Credit Agreement); (vii) the incurrence by any Foreign Subsidiary of Indebtedness, which when aggregated with the principal amount of Indebtedness of all Foreign Subsidiaries then outstanding and incurred pursuant to this clause (vii), does not exceed $5.0 million (or the equivalent thereof in any other currency) at any one time outstanding outstanding; (viii) the incurrence by any Restricted Subsidiary of the Company of Acquired Debt in an aggregate principal amount not to exceed $25 million, less 20.0 million for all Restricted Subsidiaries (reduced by the amount of Acquired Debt repaid with the Net Proceeds of Asset Sales of any Restricted Subsidiary subject to such Acquired Debt) that have (a) has not been applied incurred in connection with, or in contemplation of such Restricted Subsidiary becoming a Restricted Subsidiary, or a merger of a Person subject to permanently reduce borrowings such Acquired Debt with or into such Restricted Subsidiary, and commitments under (b) is without recourse to the Company or any of its Restricted Subsidiaries or any of their respective assets (other than the Restricted Subsidiary subject to such Acquired Debt and its assets), and is not guaranteed by any such facilityPerson; provided that (A) after giving pro forma effect to the incurrence thereof as if incurred by the Company, PROVIDED the Company could incur at least $1.00 of Indebtedness under the first paragraph of this Section 4.09, (B) any Refinancing Indebtedness with respect thereto may not be incurred by any Person other than the Restricted Subsidiary that is the proceeds obligor on such Acquired Indebtedness, and (C) such Restricted Subsidiary becomes an Additional Guarantor upon incurrence of such Acquired Debt in accordance with this Indenture; (ix) the incurrence by the Company of Indebtedness in connection with the issuance of notes in payment of the repurchase, redemption, acquisition or retirement of Equity Interests of the Company or any Restricted Subsidiary of the Company to the extent permitted by Section 4.07 hereof; (x) Hedging Obligations that are not used incurred for acquisitions the purpose of fixing or other expenditures not hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms of the Credit Agreement or this Indenture to be outstanding; (xi) Indebtedness arising out of letters of credit, performance bonds, surety bonds, guarantees resulting from endorsements of negotiable instruments and bankers' acceptances, incurred in the ordinary course of business, ; (bxii) all Obligations with respect to the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, foregoing; (cxiii) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to repay, redeem, defease, extend, refinance, renew, replace, or refund or defeaseIndebtedness referred to in clauses (ii) through (xii) above, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to and this clause (b), xiii) (c) or (g) of this paragraph (the "REFINANCING INDEBTEDNESSRefinancing Indebtedness"); PROVIDED, HOWEVER, provided that (1a) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substitutedsubstituted or refunded (plus the amount of fees, refunded premiums, consent fees, prepayment penalties and expenses incurred in connection therewith); (b) in the case of Refinancing Indebtedness for Indebtedness permitted under clause (iii) or defeased(viii) of this paragraph, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, replaced or refunded or defeased or (y) shall mature after the remaining Weighted Average Life to Maturity scheduled maturity date of the Notes and Notes; (3c) if applicableto the extent such Refinancing Indebtedness refinances Indebtedness subordinate to the Notes, the such Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded replaced or defeased refunded; and (a "PERMITTED REFINANCING"), (ed) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (f) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Refinancing Indebtedness permitted to be incurred by this Indenturea Guarantor, such Refinancing Indebtedness shall rank no more senior, and shall be at least as subordinated, in right of payment to the Guarantee of such Guarantor as the Indebtedness being extended, refinanced, renewed, replaced or refunded; (gxiv) additional Indebtedness in of the Company (a) not to exceed an aggregate principal amount not to exceed of $10 8.0 million outstanding at any one time outstandingarising as a result of the issuance of tax-exempt industrial development bonds or similar tax-exempt public financing, and (hb) Capital Lease Obligations additional Indebtedness arising out of the issuance of additional tax-exempt public financing obligations, but only to the extent that Indebtedness owing under the Credit Agreement is prepaid, concurrently with the receipt of the net proceeds of such issuance, in an aggregate principal amount not at least equal to exceed $2 million at any one time outstandingthe amount of such proceeds, and term indebtedness or the availability of revolving credit borrowings under the Credit Agreement is permanently reduced by the amount of such net proceeds and (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (jxv) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date of this Indenture and between (ka) the incurrence by the Company and its Restricted Subsidiaries and (b) the Restricted Subsidiaries; provided, that (x) any subsequent issuance or transfer of Hedging Obligations with respect Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Wholly Owned Restricted Subsidiary and (y) any sale or other transfer of any such Indebtedness to long-term a Person that is not either the Company or a Wholly Owned Restricted Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness of an Accounts Receivable by the Company or such Restricted Subsidiary, as the case may be.
Appears in 1 contract
Samples: Indenture (Rayovac Corp)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), and the Company shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and the Restricted Subsidiaries of the Company may incur Indebtedness or issue preferred stock, if (i) 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 preferred stock is issued would have been at least (a) 2.0 to 1 or, if a Timberlands Repurchase has occurred pursuant to and in accordance with the fourth paragraph of Section 4.10 hereof, 2.25 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, in each either 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 preferred stock or Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period period. The first paragraph of this Section 4.09 shall not prohibit the incurrence of any of the following items of Indebtedness (collectively, "Exchange Indenture Permitted Indebtedness"):
(i) the incurrence by the Company and its Restricted Subsidiaries of additional Indebtedness under Credit Facilities and letters of credit under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (i) (with letters of credit being deemed to have a principal amount equal to the face amount) not to exceed $1.51 billion less the aggregate amount of all Net Proceeds of Asset Sales that have been applied by the Company or any of its Restricted Subsidiaries since the Issue Date to permanently repay Indebtedness under a Credit Facility pursuant to Section 4.10 hereof and less the amount of Indebtedness outstanding under clause (xviii) below; provided that the amount of Indebtedness permitted to be incurred pursuant to Credit Facilities in accordance with this clause (i) shall be in addition to any Indebtedness permitted to be incurred pursuant to Credit Facilities, in reliance on, and in accordance with, clauses (iv) and (xix) below or in the first paragraph hereof;
(ii) such the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness is pari passu with or subordinated in right of payment represented by the Notes to be issued on the Issue Date and the New Notes to be issued pursuant to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notes. The foregoing limitations will not apply to Preferred Stock Registration Rights Agreement;
(aiv) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of creditfinancing all or any part of the purchase price or cost of construction or improvement of property, and any extension, refinancing, renewal, replacement plant or refunding thereofequipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount at (which amount may, but need not be, incurred in whole or in part under Credit Facilities), including all Permitted Refinancing Indebtedness incurred to refund, refinance, replace, amend, restate, modify or renew, in whole or in part, any one time outstanding Indebtedness incurred pursuant to this clause (iv), not to exceed the greater of 7.5% of Total Assets as of the date of incurrence and $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 50.0 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(bv) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the Existing net proceeds of which are used to refund, refinance, replace, amend, restate, modify or renew, in whole or in part, Indebtedness (other than intercompany Indebtedness) that was permitted by this Exchange Indenture to be incurred under the first paragraph hereof or clauses (ii), (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notesiii), (div), (xv) or (xix) of this paragraph;
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries; provided, however, that each of the following shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi):
(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 a Restricted Subsidiary thereof; and
(B) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary thereof;
(vii) the incurrence by the Company 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 or fixed rate Indebtedness that is permitted by the terms of this Exchange Indenture to be outstanding and the incurrence of Indebtedness under Other Hedging Agreements providing protection against fluctuations in currency values or in the price of energy, commodities and raw materials in connection with the Company's or any of its Restricted Subsidiaries' operations so long as management of the Company or such Restricted Subsidiary, as the case may be, has determined that the entering into of such Other Hedging Agreements are bona fide hedging activities;
(viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary Guarantorsof the Company that was permitted to be incurred by another provision of this Section 4.09;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Company that was not permitted by this clause (fix);
(x) the accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock shall not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09; provided, in each such case, that the amount thereof is included in Fixed Charges and Consolidated Indebtedness of the Company as accrued;
(xi) the incurrence by the Company of Hedging Obligations to protect Indebtedness and the issuance by the Company against interest rate risk with respect to variable rate Indebtedness permitted of preferred stock, in each case, that is deemed to be incurred or issued, as the case may be, in connection with the Contribution;
(xii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations pursuant to foreign currency agreements entered into in the ordinary course of business and not for speculative purposes;
(xiii) Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred 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 Company or any Restricted Subsidiary (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (A)) and
(B) the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including noncash proceeds (the fair market value of such noncash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Company and its Restricted Subsidiaries in connection with such disposition;
(xiv) the incurrence of obligations in respect of performance and surety bonds and completion guarantees provided by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(xv) the incurrence of Indebtedness by any Restricted Subsidiary that is organized outside of the United States in connection with the acquisition of assets or a new Restricted Subsidiary in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance, replace, amend, restate, modify or renew, in whole or in part, any Indebtedness incurred pursuant to this clause (xv), not to exceed $25.0 million at any one time outstanding; provided that such Indebtedness was incurred by the prior owner of such asset or such Restricted Subsidiary prior to such acquisition by the Restricted Subsidiary and was not incurred in connection with, or in contemplation of, such acquisition by the Restricted Subsidiary;
(xvi) the incurrence of Indebtedness consisting of guarantees of loans made to management for the purpose of permitting management to purchase Equity Interests of the Company, in an amount not to exceed $7.5 million at any one time outstanding;
(xvii) Indebtedness of the Company that may be deemed to exist under the Contribution Agreement as a result of the Company's obligation to pay purchase price adjustments; provided that the incurrence of Indebtedness to pay the purchase price adjustment shall be deemed to constitute an incurrence of Indebtedness that was not permitted by this Indenture, clause (gxvii);
(xviii) the incurrence of Indebtedness by a Receivables Subsidiary in a Qualified Receivables Transaction that is not recourse to the Company or any of its Subsidiaries (except for Standard Securitization Undertakings); provided that the aggregate principal amount of Indebtedness outstanding under this clause (xviii) and clause (i) above does not exceed $1.51 billion less the aggregate amount of all Net Proceeds of Asset Sales that have been applied by the Company or any of its Restricted Subsidiaries since the Issue Date to permanently repay Indebtedness under a Credit Facility pursuant to Section 4.10 hereof; and
(xix) the incurrence by the Company of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) (which amount may, but need not be, incurred in whole or in part under the Credit Facilities) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance, replace, amend, restate, modify or renew, in whole or in part, any Indebtedness incurred pursuant to this clause (xix), not to exceed $10 million at any 75.0 million. 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 time outstanding, (h) Capital Lease Obligations of the categories of Exchange Indenture Permitted Indebtedness described in an aggregate principal amount not to exceed $2 million at any one time outstanding, clauses (i) purchase money Indebtedness in an aggregate principal amount not through (xix) above, or is entitled to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness be incurred pursuant to the Registration Rights Agreement as first paragraph of this Section 4.09, the Company shall be permitted to classify or later reclassify such item of Indebtedness in effect any manner that complies with this Section 4.09. Indebtedness under Credit Facilities outstanding on the Issue Date shall be deemed to have been incurred on such date in reliance on the exception provided by clause (i) of this the definition of Exchange Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable SubsidiaryPermitted Indebtedness.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), and the Company shall will not issue any Disqualified Stock and shall will not permit any of its Subsidiaries to issue any shares of preferred stockPreferred Stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, if (i) 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 is issued would have been at least (a) 2.25 2.5 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period period. The proceeding paragraph will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(1) the incurrence by the Company and its Restricted Subsidiaries of additional Indebtedness under Credit Facilities 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 the lesser of (x) $30.0 million less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any of its Restricted Subsidiaries to repay Indebtedness under a Credit Facility and effect a corresponding commitment reduction thereunder pursuant to Section 4.10 and (iiy) the amount of the Borrowing Base as of the date of such incurrence;
(2) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Company and the Guarantors of Indebtedness is pari passu with or subordinated in right of payment to represented by the Notes and has a Weighted Average Life the related Subsidiary Guarantees to Maturity that is greater than be issued on the remaining Weighted Average Life date of this Indenture and the Exchange Notes and the related Subsidiary Guarantees to Maturity be issued pursuant to the Registration Rights Agreement;
(4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the Notes. The foregoing limitations will purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (4), not apply to exceed $5.0 million at any time outstanding;
(a5) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price of point of sale equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (5), not to exceed $5.0 million;
(6) the incurrence by the Company or any of its Subsidiaries of revolving credit Permitted Refinancing Indebtedness and letters of creditin exchange for, and any extension, refinancing, renewal, replacement or refunding thereof, in an aggregate principal amount at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the net proceeds of such which are used to refund, refinance or replace Indebtedness are not used for acquisitions (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under the first paragraph of this covenant or other expenditures not in the ordinary course of businessclauses (2), (b3), (4), (5), (6) or (13) of this paragraph;
(7) the incurrence by the Company or any of its Restricted Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries or a Guarantor; provided, however, that: (a) if the Company or any Guarantor is the obligor on such Indebtedness and the obligor is not a Guarantor or the Company, 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 Guarantor; 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 Wholly Owned Restricted Subsidiary thereof or a Guarantor and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Restricted Subsidiary thereof or a Guarantor; shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (7);
(8) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging (i) interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding or (ii) currency values with respect to transactions entered into by the Company or a Restricted Subsidiary Guarantorsin the ordinary course of business;
(9) the guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company to the extent such Indebtedness was permitted to be incurred by another provision of this covenant;
(10) the accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this covenant; provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued;
(f11) the incurrence by the Company or any of Hedging Obligations to protect its Restricted Subsidiaries of Indebtedness consisting of performance, bid or advance payment bonds, surety bonds, custom bonds, utility bonds and similar obligations arising in the ordinary course of business;
(12) the incurrence by the Company against interest rate risk or any of its Restricted Subsidiaries of Indebtedness arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, in each case incurred or assumed in connection with respect to variable rate the disposition of any business, asset or Subsidiary of the Company, provided that the maximum assumable Indebtedness permitted to be incurred shall at no time exceed the gross proceeds actually received by this Indenture, the Company and its Restricted Subsidiaries in connection with such disposition; and
(g13) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (13), not to exceed $10 million at 5.0 million. The Company will not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Company 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 Company shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company 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 time outstandingof the categories of Permitted Debt described in clauses (1) through (13) above, (h) Capital Lease Obligations in an aggregate principal amount not or is entitled to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness be incurred pursuant to the Registration Rights Agreement as in effect first paragraph of this Section 4.09, the Company will be 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. Indebtedness under Credit Facilities outstanding on the date on which Notes are first issued and authenticated under this Indenture and shall be deemed to have been incurred on such date in reliance on the exception provided by clause (k1) of the incurrence by the Company and its Subsidiaries definition of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable SubsidiaryPermitted Debt.
Appears in 1 contract
Samples: Indenture (G & G Retail Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock if (i) the Company's 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 is issued would have been at least (a) 2.25 2.00 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period and (ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity period. The provisions of the Notes. The foregoing limitations will first paragraph of this covenant shall not apply to the incurrence of any of the following items of Indebtedness (acollectively, "Permitted Debt"):
(i) the incurrence by the Company or any of its Subsidiaries of term Indebtedness, revolving credit Indebtedness and indebtedness under letters of creditcredit (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company thereunder) under any Credit Facility (and the Guarantee thereof by the Guarantors); provided that, and any extensionsubject to clause (xii) below, refinancing, renewal, replacement or refunding thereof, in an the aggregate principal amount of all Indebtedness and letters of credit outstanding at any one time outstanding under all Credit Facilities after giving effect to such incurrence, does not to exceed $25 million, 50.0 million less the aggregate amount of all permanent repayments from Net Proceeds of Asset Sales or as stated amortization of a term loan, if applicable, optional or mandatory, of the principal of any Indebtedness under a Credit Facility (or any such Permitted Refinancing Indebtedness) that have been applied to permanently reduce borrowings and commitments under any made since the date hereof; provided that such facilitydeduction will not exceed, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of businessaggregate, $25.0 million; 41
(b) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (cii) the incurrence by the Company and its Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company of Indebtedness represented by the Notes and the Senior Notes, incurrence by the Guarantors of the Subsidiary Guarantees;
(div) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in exchange foreach 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 proceeds business of which are used the Company or such Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to extendrefund, refinance, renew, replace, refund refinance or defease, replace Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to this clause (biv), not to exceed $5.0 million at any time outstanding;
(c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1v) the principal amount incurrence by the Company or any of such its Subsidiaries of Permitted Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, Indebtedness;
(2vi) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to incurrence by the Company or greater than either (x) the remaining Weighted Average Life to Maturity any of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity its Subsidiaries of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Guarantors; 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 this Indenture, (ii) if a Subsidiary of the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of such Subsidiary's Subsidiary Guarantee and (iii)
(A) any subsequent event or issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Subsidiary of the Company and (B) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Subsidiary of the Company that is a Guarantor shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be, that was not permitted by this clause (vi);
(vii) the issuance by a Subsidiary that is a Guarantor of preferred stock to the Company or to any of its Subsidiaries that are Guarantors; provided, however, that any subsequent event or issuance or transfer of any Equity Interests that results in the owner of such preferred stock ceasing to be the Company or one of its Subsidiaries that are Guarantors or any subsequent transfer of such preferred stock to a Person other than the Company or any of its Subsidiaries that are Guarantors, shall be deemed to be an issuance of preferred stock by such Subsidiary that was not permitted by this clause (fvii).
(viii) the incurrence by the Company or any of its 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;
(ix) Indebtedness arising from agreements of the Company or a Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred in connection with the disposition of any business, assets or a Subsidiary, other than the 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 Company or any Subsidiary (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the 42 balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (A)) and (B) the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including noncash proceeds (the fair market value of such noncash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Company and its Subsidiaries in connection with such disposition;
(x) the guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Subsidiary of the Company that was permitted to be incurred by another provision of this Section 4.09;
(xi) the incurrence of Indebtedness by one of the Company's Subsidiaries evidenced by the promissory notes (the "Eagle Rock Notes") issued and issuable under the certain Lease Agreement date April 19, 1986, as amended by a Memorandum of Agreement dated February 26, 1993, between one of the Company's Subsidiaries (as successor in interest to DSD, Inc.) and 000 Xxxxx Xxxx Xxxxxx Associates; or
(xii) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (xii), not to exceed $10 million at 10.0 million; provided that such additional Indebtedness may be Senior Debt under any Credit Facility. For purposes of determining compliance with this covenant, in the event that an item of Indebtedness meets the criteria of more than one time outstanding, (h) Capital Lease Obligations of the categories of Permitted Debt described in an aggregate principal amount not to exceed $2 million at any one time outstanding, clauses (i) purchase money through (xii) above or is entitled to be incurred pursuant to the first paragraph of this covenant, the Company shall, in its sole discretion, classify such item of Indebtedness in any manner that complies with this Section 4.09. 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 aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date for purposes of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable SubsidiarySection 4.09.
Appears in 1 contract
Samples: Indenture (RWBV Acquisition Corp)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stockDisqualified Stock or Preferred Stock (other than to the Company or a Wholly Owned Subsidiary of the Company); PROVIDEDprovided, HOWEVERhowever, that the Company and its Subsidiaries may incur Indebtedness (including Acquired Debt) and the Company (but not any of its Subsidiaries) may issue shares of Disqualified Stock, if (i) 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 is issued would have been at least (a) 2.25 2.0 to 11.0, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period period. The foregoing provisions shall not apply to the incurrence of the following Indebtedness:
(i) the incurrence by the Company of Senior Debt under the New Credit Facility and letters of credit thereunder in an aggregate principal amount at any time outstanding (with letters of credit (other than Insurance Letters of Credit) being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) not to exceed an amount equal to $100.0 million under the New Credit Facility less the aggregate amount of all Net Proceeds of Asset Sales applied to permanently reduce the commitments with respect to such Indebtedness pursuant to Section 4.10 hereof;
(ii) such the incurrence by the Company and its Subsidiaries of Existing Indebtedness;
(iii) the incurrence by the Company of Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of represented by the Notes. The foregoing limitations will not apply to ;
(aiv) the incurrence by the Company or any of its Subsidiaries of revolving credit additional Indebtedness and letters represented by Capital Lease Obligations, mortgage financings, purchase money obligations or Acquired Debt, in each case incurred for the purpose of creditfinancing or refinancing all or any part of the purchase price or cost of construction or improvement of property, and any extension, refinancing, renewal, replacement plant or refunding thereofequipment used in the business of the Company or such Subsidiary, in an aggregate principal amount at any one time outstanding not to exceed $25 million, less 5.0 million at any time outstanding;
(v) the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not incurrence in the ordinary course of businessbusiness by the Company or any of its Subsidiaries of Indebtedness in respect of Insurance Letters of Credit;
(vi) the incurrence by any Subsidiary of the Company of Indebtedness under a Guarantee of any Indebtedness permitted under this Indenture to be incurred by the Company; provided that (a) in the case such Guarantee is of Indebtedness that is pari passu in right of payment with the Notes, all obligations with respect to the Notes are Guaranteed on an equal and ratable basis with the Indebtedness so Guaranteed, and (b) in the case such Guarantee is of Indebtedness that is subordinated in right of payment to the Notes, all obligations with respect to the Notes are Guaranteed on a senior basis reflecting the subordination of the Indebtedness so Guaranteed on terms substantially similar to, or more favorable to senior creditors than, those contained in this Indenture;
(vii) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued Permitted Refinancing Debt in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, refund defease or defeaserefund, Indebtedness incurred pursuant that was permitted by this Indenture to the immediately preceding paragraph or pursuant to clause be incurred;
(b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1viii) the principal amount incurrence by the Company or any of such Refinancing Indebtedness shall not exceed the principal amount its Subsidiaries of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries; provided, however, that (x) if the Company is the obligor of such Indebtedness, such Indebtedness is evidenced by a note and expressly subordinate to the payment in full of all Obligations with respect to the Notes and (y)
(I) any subsequent issuance, transfer or other disposition of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Wholly Owned Subsidiary and (II) any sale, transfer or other disposition of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(ix) the incurrence by the Company or any of its Subsidiaries of Hedging Obligations that are Subsidiary Guarantorsincurred for the purpose of fixing or hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding;
(x) the incurrence by the Company or any of its Subsidiaries of Indebtedness in respect of bid, performance or advance payment bonds, and appeal and surety bonds;
(fxi) the incurrence by the Company of Hedging Obligations to protect Indebtedness as part of the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, IRB Payment Even t;
(g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date of this Indenture and (kxii) the incurrence by the Company and or any of its Subsidiaries of Hedging Obligations Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount (or accreted value, as applicable) at any time outstanding not to exceed $10.0 million; and
(xiii) the incurrence by the Company or any of its Subsidiaries of interest, fees or other expenses on Indebtedness otherwise permitted under this covenant, provided that such interest, fees or other expenses are payable on a current basis no less frequently than semi-annually and are paid when due or within any applicable customary grace period thereafter, not to exceed thirty days. For purposes of determining compliance with this covenant, (i) in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness permitted by this covenant, the Company in its sole discretion will classify such item of Indebtedness and will only be required to include the amount and type of each class of Indebtedness in the test specified in the first paragraph of this covenant or in one of the clauses of the second paragraph of this covenant; (ii) the amount of Indebtedness issued at a price which is less than the principal amount thereof shall be equal to the amount of liability in respect thereof determined in accordance with GAAP, unless the Company shall elect upon written notice to long-term the Trustee at the time of issuance of such Indebtedness, to qualify the extended principal amount or final accreted value thereof as permitted under the terms of this Section 4.9; and (iii) the amount of Indebtedness represented by a Guarantee of a primary obligation of another Person shall be deemed to be the lower of (x) an Accounts Receivable Subsidiaryamount equal to the maximum amount of the primary obligation (including without limitation all principal, premiums (if any), interest, fees and all other amounts in respect thereof) in respect of which such Guarantee is made and (y) the maximum amount for which such guaranteeing Person may be liable pursuant to the terms of the applicable Guarantee, which, in any case in which such Guarantee consists solely of the granting of a Lien on any asset of such guaranteeing Person, shall be limited to the fair market value of such asset.
Appears in 1 contract
Samples: Indenture (Loomis Fargo & Co)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company and the Guarantors may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock if (i) 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 is issued would have been at least (a) 2.25 2.0 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period and period. The provisions of the first paragraph of this Section 4.09 shall not apply to the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(i) the incurrence by the Company of Indebtedness under the New Credit Facility; provided that the aggregate principal amount of all Indebtedness outstanding under the New Credit Facility after giving effect to such incurrence does not exceed an amount equal to $10.0 million less the aggregate amount of all Net Proceeds of Asset Sales that have been applied since the date of this Indenture to repay Indebtedness pursuant to Section 4.10 hereof;
(ii) such the incurrence by the Company of Indebtedness is pari passu with represented by Capital Lease Obligations, mortgage financings or subordinated purchase money obligations, in right each case incurred for the purpose of payment 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, in an aggregate principal amount not to exceed $2.5 million at any time outstanding;
(iii) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(iv) the incurrence by the Company of up to $100.0 million of Indebtedness represented by the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity Exchange Notes;
(v) The guarantee by the Company or any of the Notes. The foregoing limitations will not apply Guarantors of Indebtedness that was permitted to be incurred by another provision of this Section 4.09;
(avi) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, in an aggregate principal amount at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, (b) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries Restricted Subsidiaries; provided, however, that are (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 a Restricted Subsidiary Guarantorsthereof and (B) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (fvi);
(vii) the incurrence by the Company of Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging interest rate risk with respect to variable any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding; provided, that the agreement, indenture or other documents governing such Indebtedness require such fixing or hedging of interest rate risk;
(viii) the incurrence by the Company or any of 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 by this Indenture to be incurred under the first paragraph hereof or clauses (iii), (iv), (viii) and (x) of this paragraph;
(ix) the incurrence by the Company of Indebtedness with respect to performance, surety and appeal bonds in the ordinary course of business;
(x) the incurrence by the Company's Unrestricted Subsidiaries of Non- Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Company that was not permitted by this Indenture, clause (gx); and
(xi) the incurrence by the Company of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xi), not to exceed $10 million at 5.0 million. The Company shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Company 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 Company shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company 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 time outstanding, (h) Capital Lease Obligations of the categories of Permitted Debt described in an aggregate principal amount not to exceed $2 million at any one time outstanding, clauses (i) purchase money Indebtedness in an aggregate principal amount not through (xi) above as of the date of incurrence thereof, or is entitled to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness be incurred pursuant to the Registration Rights Agreement first paragraph of this Section 4.09 as of the date of incurrence thereof, the Company shall, in effect its sole discretion, classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Indenture Section 4.09. Accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms and (k) the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock shall not be deemed to be an incurrence by of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09; provided, in each such case, that the amount thereof is included in Fixed Charges of the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable Subsidiaryas accrued.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and that the Company shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock if (i) the Company's 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 is issued would have been at least (a) 2.25 2.00 to 11.00, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period and (ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity period. The provisions of the Notes. The foregoing limitations will first paragraph of this Section 4.9 shall not apply to the incurrence of any of the following items of Indebtedness (acollectively, "Permitted Debt") so long as no Default has occurred and is continuing or would be caused thereby: the incurrence by the Company of (A) revolving credit Indebtedness under any Credit Facility, letters of credit (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) and related Guarantees under any Credit Facility; provided that the aggregate principal amount of all revolving Indebtedness and letters of credit of the Company and its Restricted Subsidiaries (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) outstanding at any one time under all such Credit Facilities after giving effect to such incurrence, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (i), does not exceed $160.0 million less the aggregate amount of Asset Sale proceeds applied by the Company and its Restricted Subsidiaries to permanently reduce the availability of revolving credit Indebtedness under the Credit Facility pursuant to the provisions described in Section 4.10 hereof; and (B) up to $75.0 million of the term loan or a similar facility not to exceed $75.0 million (less the aggregate amount of all repayments (optional or mandatory) of the principal of any term loan pursuant to this clause (i) that has been made by the Company since the date of this Indenture); the incurrence by the Company and its Restricted Subsidiaries of Existing Indebtedness; the incurrence by the Company of Indebtedness represented by the Notes in an aggregate principal amount of up to $150.0 million outstanding on the date of this Indenture and the incurrence by the Guarantors of Indebtedness represented by the Subsidiary Guarantees thereof; the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the purpose of creditfinancing all or any part of the purchase price or cost of construction or improvement of property, and any extension, refinancing, renewal, replacement plant or refunding thereofequipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount at any one time outstanding amount, including all Permitted Refinancing Indebtedness incurred pursuant to this clause (iv), not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 15.0 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, (b) time outstanding; the incurrence by the Company or any of its Restricted Subsidiaries of the Existing IndebtednessPermitted Refinancing Indebtedness in respect of Indebtedness that was permitted by this Indenture to be incurred by such entity other than pursuant to clause (i), (cvi) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, (dvii) below; the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries Restricted Subsidiaries; provided, however, that are (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 this Indenture and (ii)(A) any subsequent event or 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 Guarantorsof the Company and (B) 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 shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (f) vi); the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations to protect that are incurred in the Company against normal course of business and consistent with past business practices for the purpose of fixing or hedging currency, commodity or interest rate risk (including with respect to variable any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding in connection with the conduct of their respective businesses and not for speculative purposes); the Guarantee by the Company of Indebtedness of any of the Guarantors or the Guarantee by any of the Guarantors of Indebtedness of the Company, in each case that was permitted to be incurred by another provision of this IndentureSection 4.9; the incurrence by a Restricted Subsidiary that is a Foreign Subsidiary of Non-Recourse Debt in an amount not to exceed the sum of (a) 75% of the net book value of the non-Affiliate accounts receivable of such Restricted Foreign Subsidiary determined in accordance with GAAP and (b) 50% of the total Eligible Inventory of such Restricted Subsidiary; the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Company that was not permitted by this clause (gx); the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from agreements of the Company or a Restricted Subsidiary of the Company providing for indemnification, adjustment of purchase price or other similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Restricted Subsidiary of the Company, other than the 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 that (A) such Indebtedness is not reflected on the balance sheet of the Company or any Subsidiary of the Company (contingent -47- 55 obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (A)) and (B) the maximum assumable liability in respect of all such Indebtedness with respect to such disposition shall at no time exceed the gross proceeds including noncash proceeds (the fair market value of such noncash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Company and its Restricted Subsidiaries in connection with such disposition; and the incurrence by the Company or any of its Restricted Subsidiaries that are Guarantors of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (xii), not to exceed $10 25.0 million, provided that up to $10.0 million at of such $25.0 million may be incurred by any of the Company's Foreign Restricted Subsidiaries that are not Guarantors. For purposes of determining compliance with this covenant, in the event that an item of proposed Indebtedness meets the criteria of more than one time outstanding, (h) Capital Lease Obligations of the categories of Permitted Debt described in an aggregate principal amount not to exceed $2 million at any one time outstanding, clauses (i) purchase money through (xii) above as of the date of incurrence thereof or is entitled to be incurred pursuant to the first paragraph of this covenant as of the date of incurrence thereof, the Company shall, in its sole discretion, classify such item of Indebtedness as of the date of incurrence thereof in any manner that complies with this covenant and such item of Indebtedness shall be treated as having been incurred pursuant to only one of such clauses or pursuant to the first paragraph hereof. 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 aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date for purposes of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable Subsidiarycovenant.
Appears in 1 contract
Samples: Indenture (Salton Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, create incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and the Company shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock if (i) 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 Leverage Ratio at the date on which time of the incurrence of such additional Indebtedness indebtedness, after giving pro-forma effect thereto and to the use of proceeds therefrom, is incurred would have been at least (a) 2.25 less than 7.0 to 1. Notwithstanding the foregoing, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, in each case determined on a pro forma basis (including a pro forma application the Exchange Debenture Indenture will not prohibit any of the net proceeds therefrom) as if the additional Indebtedness had been incurred at the beginning of such four-quarter period and following (ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notes. The foregoing limitations will not apply to collectively, "Permitted Indebtedness"): (a) the incurrence Indebtedness evidenced by the Company or any of its Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, in an aggregate principal amount at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, Exchange Debentures; (b) the incurrence by the Company of Indebtedness pursuant to Credit Agreements or the Company's __% Senior Subordinated Notes due 2008, so long as the aggregate principal amount of all Indebtedness outstanding under all Credit Agreements does not, at any one time, exceed $190.0 million, less the aggregate amount of its Subsidiaries all proceeds from all Asset Sales that have been applied since the date hereof to permanently reduce the outstanding amount of such Indebtedness pursuant to the Existing Indebtedness, provisions described under Section 4.10; (c) the incurrence by all Indebtedness of the Company and its Restricted Subsidiaries in existence as of Indebtedness represented by the Notes and the Senior Notes, date hereof; (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries Restricted Subsidiaries; provided, however, that are (i) if the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinate to the payment in full of all Obligations with respect to the Exchange Debentures 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 a Wholly Owned Restricted Subsidiary Guarantorsand (B) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Restricted Subsidiary 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; (fe) the incurrence by the Company or its Restricted Subsidiaries of Hedging Obligations to protect Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenturepurpose of financing all or any part of the purchase price, (g) additional Indebtedness lease or cost of construction or improvement of property, plant or equipment used in a Permitted Business in an aggregate principal amount not to exceed $10 15.0 million at any one time outstanding; (f) the incurrence by the Company or its Restricted Subsidiaries of Permitted Refinancing Debt 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 the Exchange Debenture Indenture to be incurred; (g) the incurrence by the Company or its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk with respect to any floating or variable rate Indebtedness or for the purpose of protecting against fluctuations 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 this Exchange Debenture Indenture to be outstanding; provided, however, that in the case of Hedging Obligations that are incurred for the purpose of fixing 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; (h) Capital Lease Obligations 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; (i) Indebtedness arising out of standby letters of credit covering workers compensation, performance or similar obligations in an aggregate principal amount not to exceed $2 million 500,000 at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, ; (j) any guarantee of the Company of Indebtedness or other obligations of any of its Restricted Subsidiaries so long as the incurrence of such Indebtedness pursuant to incurred by such Restricted Subsidiary is permitted under the Registration Rights Agreement as in effect on terms of the date of this Indenture and Exchange Debenture Indenture; (k) the incurrence by the Company of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding not to exceed $10.0 million; and its Subsidiaries (l) the incurrence by the Company of Hedging Obligations with Indebtedness in respect of Exchange Debentures issued as payment in kind interest on Exchange Debentures issued on the exchange of the Series A Preferred Stock, to longthe extent such interest payments are made pursuant to the terms hereof. The Company will not permit any Unrestricted Subsidiary to incur any Indebtedness other than Non-term Recourse Debt; provided, however, if any such Indebtedness ceases to be Non-Recourse Debt, such event shall be deemed to constitute an incurrence of an Accounts Receivable SubsidiaryIndebtedness by the Company.
Appears in 1 contract
Samples: Indenture (Cumulus Media Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and that the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDED, HOWEVER, that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock if (i) 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 is issued would have been at least (a) 2.25 2.0 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period and (ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity period. The provisions of the Notes. The foregoing limitations will first paragraph of this Section 4.09 shall not apply to the incurrence of any of the following items of Indebtedness (acollectively, "Permitted Debt"):
(i) the incurrence by the Company of Indebtedness and letters of credit (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) under the New Credit Agreement and the incurrence by the Subsidiary Guarantors of Guarantees thereof; PROVIDED that the aggregate principal amount of all Indebtedness outstanding under the New Credit Agreement after giving effect to such incurrence does not exceed $45,000,000 less the aggregate amount of all Net Proceeds of Asset Sales applied to permanently repay any such Indebtedness or, in the case of any such revolving Indebtedness, permanently reduce commitments therefor pursuant to Section 4.07 above;
(ii) the incurrence by the Company or any of its Subsidiaries of revolving credit 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 of this Indenture to be outstanding or that are incurred by the Company or any of its Subsidiaries to protect against currency exchange rate risk in the conduct of its operations;
(iii) the incurrence by the Foreign Subsidiaries of Indebtedness in an aggregate amount that, when combined with Existing Indebtedness of such Foreign Subsidiaries (other than Indebtedness described in clause (iv) below), does not exceed $6,500,000 and the incurrence by the Company of Guarantees of such Indebtedness;
(iv) the incurrence by the Foreign Subsidiaries of Indebtedness in connection with the issuance of completion bonds, performance guaranties or letters of credit, and any extensionthe incurrence by the Company of Guarantees thereof (with such bonds, refinancing, renewal, replacement guaranties or refunding thereof, letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Foreign Subsidiaries thereunder) in an aggregate principal amount at any one time outstanding that, when combined with such Existing Indebtedness of such Foreign Subsidiaries (other than Indebtedness described in clause (iii) above), does not to exceed $25 million, less 4,000,000;
(v) the amount incurrence by the Company and its Subsidiaries of Net Proceeds the Existing Indebtedness;
(vi) the incurrence by the Company of Asset Sales that have been applied to permanently reduce borrowings Indebtedness represented by the Notes and commitments under any such facility, PROVIDED that the proceeds incurrence by the Subsidiary Guarantors of such Indebtedness are not used for acquisitions or other expenditures not in represented by the ordinary course of business, Subsidiary Guarantees;
(bvii) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the Existing Indebtednessnet proceeds of which are used to refund, refinance or replace Indebtedness that was permitted by this Indenture to be incurred;
(c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, (dviii) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries Subsidiaries; PROVIDED, HOWEVER, that are (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 if a Subsidiary GuarantorsGuarantor 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 Subsidiary Guarantees and (fii)(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 a Wholly Owned Subsidiary and (B) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(ix) the incurrence by the Company or any of Hedging Obligations to protect the Subsidiary Guarantors of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvements of property used in the business of the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indentureor such Subsidiary Guarantors, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 million 5,000,000 at any one time outstanding, ; and
(hx) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money the incurrence by the Company of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (x), not to exceed $2 million at any one time outstanding15,000,000. For purposes of determining compliance with this covenant, (j) in the incurrence event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (x) above or is entitled to be incurred pursuant to the Registration Rights Agreement as in effect on the date first paragraph of this Indenture and (k) the incurrence by covenant, the Company shall, in its sole discretion, classify such item of Indebtedness in any manner that complies with this covenant and its Subsidiaries such item of Hedging Obligations with respect Indebtedness shall be treated as having been incurred pursuant to long-term only one of such clauses or pursuant to the first paragraph hereof. Any Indebtedness of an Accounts Receivable Subsidiarythat may be incurred pursuant to this covenant may be incurred under the New Credit Agreement.
Appears in 1 contract
Samples: Indenture (Wavetek U S Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable with respect to (collectively, "INCUR") incur any Indebtedness (including Acquired Debt), and the Company shall not issue any Disqualified Stock and shall Issuer will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company Issuer and the Guarantors may incur Indebtedness (including Acquired Debt) and the Guarantors may issue preferred stock, if (i) the Fixed Charge Coverage Ratio for the Company's Issuer’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 preferred stock is issued would have been at least (a) 2.25 2.00 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 preferred stock had been issued, as the case may be, at the beginning of such four-quarter period and period.
(iib) such Indebtedness is pari passu with or subordinated in right Section 4.10(a) will not prohibit the incurrence of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity any of the Notes. The foregoing limitations will not apply to following items of Indebtedness (collectively, “Permitted Debt”):
(1) (a) the incurrence by the Company Issuer or any Guarantor of its Subsidiaries Indebtedness under Credit Facilities (and the incurrence by the Guarantors of revolving credit Guarantees thereof) and (b) the incurrence by a Receivables Subsidiary of Indebtedness and letters that is not recourse to the Issuer or any other Restricted Subsidiary of credit, and any extension, refinancing, renewal, replacement or refunding thereof, the Issuer (other than Standard Securitization Undertakings) incurred in connection with a Qualified Receivables Transaction) in an aggregate principal amount at any one time outstanding (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Issuer and its Restricted Subsidiaries thereunder) for Indebtedness incurred under clauses (a) and (b) not to exceed (as of any date of incurrence of Indebtedness pursuant to this clause (1) and after giving pro forma effect to such incurrence and the application of the net proceeds therefrom) the greater of (x) $25 million, 70.0 million and (y) the Borrowing Base and in each case less the any amount of Net Proceeds of Asset Sales that have been applied used to permanently repay such Obligations (or permanently reduce borrowings commitments with respect thereto) pursuant to Section 4.13 hereof;
(2) Existing Indebtedness and commitments under any such facility, PROVIDED the Existing Notes that remain outstanding after giving effect to the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, Transactions;
(b3) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company Issuer and its Restricted Subsidiaries of Indebtedness represented by the Notes to be issued on the date of this Indenture and related Note Guarantees, any Exchange Notes and the Senior Notes, related Note Guarantees that may be issued pursuant to the Registration Rights Agreement;
(d4) the incurrence by the Company Issuer or any of its Restricted Subsidiaries of Indebtedness issued represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in exchange foreach case, incurred for the purpose of financing all or any part of the purchase price, or the proceeds cost of which are used to extendconstruction or improvement, refinance, renew, replace, refund of property (real or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (bpersonal), (c) plant or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) equipment used in the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity business of the Indebtedness being extended, refinanced, renewed, replaced, refunded Issuer or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries that are Subsidiary Guarantors, pursuant to this clause (f4) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 30.0 million at any one time outstanding;
(5) the incurrence by the Issuer or any of 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 is permitted by this Indenture to be incurred under Section 4.10(a) or clause (2), (h3), (5) Capital Lease or (17) of this Section 4.10(b);
(6) the incurrence by the Issuer or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Issuer and any of its Restricted Subsidiaries; provided, however, that:
(a) if the Issuer or any Guarantor is the obligor on such Indebtedness, and such Indebtedness is owed to a Restricted Subsidiary that is not a Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in an aggregate principal amount not to exceed $2 million at any one time outstandingthe case of the Issuer, or the Note Guarantee, in the case of a Guarantor; 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 Issuer or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Issuer or a Restricted Subsidiary thereof, shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Issuer or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);
(7) the incurrence by the Issuer or any of its Restricted Subsidiaries of Hedging Obligations that are incurred in the ordinary course of business for the purpose of fixing, hedging or swapping interest rate, commodity price or foreign currency exchange rate risk (or to reverse or amend any such agreements previously made for such purposes), and not for speculative purposes, and that do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in interest rates, commodity prices or foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder;
(8) the Guarantee by the Issuer or any Restricted Subsidiary of any obligations including Indebtedness of the Issuer or a Restricted Subsidiary of the Issuer that was permitted to be incurred by another provision of this Section 4.10; provided that, in the case of a Guarantee of any Restricted Subsidiary that is not a Guarantor, such Restricted Subsidiary complies with Section 4.16;
(9) the accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock or preferred stock in the form of additional shares of the same class of Disqualified Stock or preferred stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred stock for purposes of this Section 4.10; provided, in each such case, that the amount thereof is included in Fixed Charges of the Issuer as accrued;
(10) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness and cash management obligations in respect of netting services, automatic clearinghouse arrangements, overdraft protectors, employee credit card programs and other cash management and similar arrangements, including Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business;
(11) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit and bank guarantees issued in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claims or self-insurance, or other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims or self-insurance; 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;
(12) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness arising from agreements of the Issuer or such Restricted Subsidiary providing for indemnification, adjustment of purchase money price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or Capital Stock of the Issuer or a Restricted 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 that the maximum assumable liability in respect of that Indebtedness shall at no time exceed the gross proceeds including non-cash proceeds (the fair market value of those non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Issuer and/or that Restricted Subsidiary in connection with that disposition;
(13) the issuance of Disqualified Stock or preferred stock by any of the Issuer’s Restricted Subsidiaries issued to the Issuer or another Restricted Subsidiary; provided that (i) any subsequent issuance or transfer of any equity securities that results in such Disqualified Stock or preferred stock being held by a Person other than the Issuer or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such shares of Disqualified Stock or preferred stock to a Person that is not either the Issuer or a Restricted Subsidiary thereof shall be deemed, in each case, to constitute an issuance of such shares of Disqualified Stock or preferred stock that was not permitted by this clause (13);
(14) the incurrence by the Issuer or any of its Restricted Subsidiaries of obligations in respect of performance and surety bonds and completion guarantees provided by the Issuer or such Restricted Subsidiary in the ordinary course of business;
(15) the incurrence by the Issuer or any Guarantor of Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding incurred pursuant to this clause (15) not to exceed $2 million 20.0 million;
(16) the incurrence by the Foreign Restricted Subsidiaries of the Issuer of Indebtedness in an aggregate principal amount at any one time outstandingoutstanding (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Restricted Subsidiaries thereunder) incurred pursuant to this clause (16) not to exceed $10.0 million;
(17) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(18) the incurrence by the Issuer of Indebtedness to effect the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Issuer or any Parent, in each case held by any former or current employees, officers, directors or consultants of the Issuer or any of its Restricted Subsidiaries or their respective estates, spouses, former spouses or family members under any management equity plan or stock option or other management or employee benefit plan upon the death, disability or termination of employment of such Persons in an aggregate amount at any one time outstanding not to exceed the maximum amount of such acquisitions pursuant to Section 4.11(b)(5);
(j19) the incurrence of Indebtedness of the Issuer or any Restricted Subsidiary supported by a letter of credit issued pursuant to the Registration Rights Credit Agreement as in effect a principal amount not in excess of the stated amount of such letter of credit; and
(20) contingent liabilities related to customary earn-outs, purchase price adjustments and indemnities in acquisition agreements and otherwise permitted under this Indenture; provided that the amount of such contingent liabilities shall not exceed the fair market value of assets acquired (in the case of an acquisition) or the purchase price paid to the Issuer or a Restricted Subsidiary (in the case of a disposition). For purposes of determining compliance with this Section 4.10, in the event that any proposed Indebtedness or preferred stock meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (20) above, or is entitled to be incurred pursuant to Section 4.10(a), the Issuer will be permitted to divide or classify such item on the date of its incurrence, and from time to time may reclassify, in any manner that complies with this Section 4.10 at such time. Indebtedness under the Credit Agreement on the date of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect shall be deemed to long-term Indebtedness of an Accounts Receivable Subsidiaryhave been incurred on such date pursuant to Section 4.10(b)(1).
Appears in 1 contract
Samples: Indenture (Headwaters Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired DebtIndebtedness), and the Company shall will not issue any Disqualified Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Indebtedness) or issue Disqualified Stock, and the Issuer may issue Additional Notes and the Guarantors may incur Indebtedness (including Acquired Indebtedness) or issue preferred stock, if (i) 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 (a) 2.25 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter1.00, 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, at the beginning of such four-quarter period period.
(b) The provisions of Section 4.09(a) hereof will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Indebtedness"):
(1) the incurrence by the Company and any Restricted Subsidiary of additional Indebtedness and letters of credit under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (ii1)(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 *330 million less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any of its Restricted Subsidiaries since the date of this Indenture to repay any term Indebtedness under any such Credit Facility or to repay any revolving credit Indebtedness is pari passu with under any such Credit Facility and effect a corresponding commitment reduction thereunder pursuant to Section 4.10 and less the aggregate amount of any commitment reduction, cancellation or subordinated in right repayment under any letter of payment to credit under Term Loan B of the German Senior Facility;
(2) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Issuer, the Company and the other Guarantors of Indebtedness represented by the Notes and has a Weighted Average Life the related Guarantees to Maturity that is greater than be issued on the remaining Weighted Average Life to Maturity date of the Notes. The foregoing limitations will not apply to this Indenture;
(a4) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of creditfinancing all or any part of the purchase price or cost of design, and construction, installation or improvement of property, plant or equipment used in the business of the Company or any extension, refinancing, renewal, replacement or refunding thereofof its Restricted Subsidiaries, in an aggregate principal amount at amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any one time outstanding Indebtedness incurred pursuant to this clause (4), not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under [e]10.0 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(b5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the Existing Indebtednessnet proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (c) the incurrence by the Company and its Subsidiaries of other than intercompany Indebtedness or Indebtedness represented by the Notes and Convertible Bonds) that was permitted by this Indenture to be incurred under the Senior Notesfirst paragraph of this covenant or clauses (2), (d3), (4), (5) or (14) of this paragraph;
(6) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries; provided, however, that:
(1) if the Company or any Guarantor is the obligor on such Indebtedness and the payee is not the Company or a Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Issuer, or the Guarantee, in the case of a Guarantor; and
(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 an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was 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:
(1) any subsequent issuance or transfer of Equity Interests that are results in any such preferred stock being held by a Person other than the Company or a Restricted Subsidiary Guarantorsof the Company; and
(2) 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 an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (f7);
(8) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business;
(9) the guarantee by the Company or any of the Subsidiary Guarantors of Indebtedness of the Company or a Subsidiary Guarantor of the Company that was permitted to be incurred by another provision of this covenant; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the Guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(10) the incurrence by the Company or any of Hedging Obligations to protect its Restricted Subsidiaries of Indebtedness in respect of workers' compensation claims, self-insurance obligations, bankers' acceptances, performance, bid and surety bonds in the ordinary course of business;
(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 drawn against interest rate risk insufficient funds, so long as such Indebtedness is covered within five business days;
(12) customer deposits and advance payments received from customers for goods purchased in the ordinary course of business;
(13) Indebtedness constituting reimbursement obligations with respect to variable rate Indebtedness permitted to be incurred bank guarantees and VAT guarantees issued in the ordinary course of business; provided, however, that, upon demand being made under such reimbursement obligations, such demands are satisfied within 30 days of the date of such demand; and
(a) the incurrence by this Indenture, (g) any Guarantor of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, not to exceed $10 million at *20 million; (b) the incurrence by any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount Restricted Subsidiary which is not to exceed $2 million at any one time outstanding, (i) purchase money a Guarantor of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, not to exceed $2 million at any one time outstanding, *30 million; and (jc) the incurrence of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, not to exceed *25 million; provided however, that the aggregate principal amount (or accreted value, as applicable) of additional Indebtedness incurred pursuant to the Registration Rights Agreement as in effect on the date of this Indenture and clause (k14) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable Subsidiaryshall at no time exceed *50 million at any time outstanding.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), and the Company shall not ) or issue any shares of Disqualified Stock and shall will not permit any of its Subsidiaries to incur Indebtedness or issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that that, so long as no Default or Event of Default has occurred and is continuing, the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock if (i) 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 is issued would have been at least (a) 2.25 2.0 to 11.0, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 had been issued at the beginning of such four-quarter period period. The provisions of the first paragraph of this covenant shall not apply to the incurrence of any of the following (collectively, "Permitted Debt"):
(i) the incurrence by the Company and the Guarantors of Indebtedness under one or more Credit Facilities in an aggregate principal amount at any time outstanding not to exceed $195.0 million (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and the Guarantors thereunder), less the aggregate amount of all Net Proceeds of Asset Sales applied to repay any such Indebtedness pursuant to clause (i) of the second paragraph of Section 4.10 hereof;
(ii) such the incurrence by the Company and the Guarantors of Indebtedness is pari passu with or subordinated in right of payment to represented by the Notes, the Exchange Notes and has a Weighted Average Life to Maturity that is greater than any Subsidiary Guarantees;
(iii) the remaining Weighted Average Life to Maturity incurrence by the Company and its Restricted Subsidiaries of the Notes. The foregoing limitations will not apply to Existing Indebtedness;
(aiv) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Permitted Refinancing Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, in an aggregate principal amount at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, (b) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the net proceeds of which are used to extendrefund, refinancerefinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred by the first paragraph of this Section 4.09, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause by clauses (bii), (ciii), (iv), (vi), (vii), (viii), (ix), (x) or and (gxii) of this paragraph Section 4.09;
("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1v) the principal amount incurrence of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries; provided, however, that (a) if the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full of all Obligations with respect to the Notes and (b) 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, and any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Restricted Subsidiary, 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;
(vi) the incurrence by the Company 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 of this Indenture to be outstanding;
(vii) the incurrence by any of the Company's Restricted Subsidiaries of Indebtedness or Preferred Stock incurred and outstanding on or prior to the date on which such Restricted Subsidiary Guarantorswas acquired by the Company(other than Indebtedness or preferred stock incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company); provided that the principal amount (for accreted value, as applicable) or aggregate liquidation preference, as applicable, of such Indebtedness or Preferred Stock, as the case may be, together with any other outstanding Indebtedness and Preferred Stock incurred pursuant to this clause (vii) does not exceed $5.0 million;
(viii) the incurrence by the Company or any Restricted Subsidiary of Indebtedness (including Capital Lease Obligations) financing the purchase, lease or improvement of property (real or personal) or equipment (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets), in each case, incurred no more than 180 days after such purchase, lease or improvement of such property in respect of such Indebtedness; provided, however, at the time of the incurrence of such Indebtedness and after giving effect thereto, the aggregate principal amount of all Indebtedness incurred pursuant to this clause (viii) and then outstanding shall not exceed the greater of $10.0 million and 10% of Adjusted Consolidated Assets;
(ix) the incurrence by the Company of Hedging Obligations Indebtedness in connection with the acquisition of a Permitted Business in respect of such Indebtedness; provided, however, that the aggregate amount of Indebtedness incurred pursuant to protect this clause (ix) and then outstanding shall not exceed $20.0 million;
(x) the guarantee by the Company against interest rate risk with respect to variable rate or any of the Guarantors of Indebtedness that was permitted to be incurred by another provision of this Indenturecovenant;
(xi) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Company that was not permitted by this clause (gxi); and
(xii) additional the incurrence by the Company or its Restricted Subsidiaries of Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstandingwhich, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money together with all other Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) of the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect Company outstanding on the date of such incurrence (other than Indebtedness permitted by clauses (i) through (xi) above or the first paragraph of this Indenture and (kcovenant) does not exceed $30.0 million; provided that the incurrence aggregate principal amount of Indebtedness incurred by Restricted Subsidiaries of the Company pursuant to this clause (xii) and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable Subsidiary.then outstanding shall not exceed $2.0
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur" or an "incurrence") any Indebtedness (including Acquired Debt), and that the Company shall will not issue any Disqualified Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company and its Restricted Subsidiaries may incur Indebtedness Indebtedness, and the Company may issue Disqualified Stock, if (i) 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 is issued would have been at least (a) 2.25 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, in each case 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 and (ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notesperiod. The foregoing limitations will provisions shall not apply to to:
(a) the incurrence by the Company or any of and its Restricted Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, under the Credit Facility in an aggregate principal amount at any one time outstanding not to exceed $25 65.0 million, 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;
(b) the amount incurrence by the Company and its Restricted Subsidiaries of Net Proceeds Existing Indebtedness;
(c) the incurrence by the Company and its Restricted Subsidiaries of Asset Sales Hedging Obligations;
(d) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness represented by the Notes, 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 have been applied to permanently reduce borrowings and commitments under any subsequent issuance or transfer of Equity Interests that results in any such facilityIndebtedness being held by a Person other than the Company or a Wholly Owned Restricted Subsidiary of the Company, PROVIDED or any sale or other transfer of any such Indebtedness to a Person that is neither the proceeds Company nor a Wholly Owned Restricted Subsidiary of the Company, shall be deemed to constitute an incurrence of such Indebtedness are not used by the Company or such Restricted Subsidiary, as the case may be;
(f) Indebtedness in respect of bid, performance or surety bonds issued for acquisitions the account of the Company or other expenditures not 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 (bin each case other than for an obligation for money borrowed); and
(g) the incurrence by the Company or any of its Restricted Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued Permitted Refinancing Debt in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund or defease, Indebtedness that was permitted by this Indenture to be incurred pursuant to the immediately preceding paragraph or (other than pursuant to clause (b), (ca) or (ge) of this paragraph ("REFINANCING INDEBTEDNESS"Section 4.09); PROVIDED, HOWEVER, . In the event that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (f) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of any Indebtedness pursuant would be permitted by the first paragraph set forth above or one or more of the provisions set forth in the second paragraph above, the Company may designate (in the form of an Officers' Certificate delivered to the Registration Rights Agreement as in effect on Trustee) the date particular provision of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect pursuant to long-term Indebtedness of an Accounts Receivable Subsidiarywhich it is incurring such Indebtedness.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness or issue shares of Disqualified Stock, and Subsidiaries of the Company may incur up to $10 million in aggregate principal amount of Indebtedness at any time outstanding, if (i) 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 is issued would have been at least (a) 2.25 to 1, if such date is prior to August 15, 1995 and (b) 2.50 2.75 to 1 thereafter, 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 incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period and (ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notesperiod. The foregoing limitations will shall not apply to to:
(a) the incurrence by the Company of Senior Term Debt in an aggregate principal amount at any time outstanding not to exceed an amount equal to $315 million less the aggregate amount of all repayments, optional or mandatory, of the principal of any Senior Term Debt (other than repayments that are immediately reborrowed) that have been made since the date of the SFC Subordinated Note Indenture (provided, however, that Subsidiaries of the Company shall not be permitted to guarantee the Senior Term Debt);
(b) the incurrence by the Company or its Subsidiaries of Senior Revolving Debt (and guarantees thereof by the Company and its Subsidiaries) in an aggregate principal amount at any time outstanding not to exceed an amount equal to $125 million, less the aggregate amount of all proceeds of sales or other dispositions of assets applied to permanently reduce the commitments with respect to such Indebtedness pursuant to Section 4.10 hereof;
(c) the incurrence by the Company and its Subsidiaries of the Existing Indebtedness;
(d) the incurrence by the Company of Indebtedness represented by the Notes (including any PIK Notes), the 12 1/8% Senior Notes and the 11 1/4% Senior Notes;
(e) the incurrence by the Company or any of its Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of credit, and financing all or any extension, refinancing, renewal, replacement part of the purchase price or refunding thereofcost of construction or improvement of property used in the business of the Company or such Subsidiary, in an aggregate principal amount at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 5 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(b) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, (df) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund defease or defeaserefund, Indebtedness incurred pursuant referred to the immediately preceding paragraph or pursuant to clause in clauses (bc), (cd) or (ge) of above or previously incurred under this paragraph clause (f) (the "REFINANCING INDEBTEDNESSRefinancing Indebtedness"); PROVIDEDprovided, HOWEVERhowever, that that:
(1i) the principal amount of such Refinancing Indebtedness shall not exceed the aggregate principal amount of amount, tender or prepayment premium and unpaid interest on the Indebtedness so extended, refinanced, renewed, replaced, substituteddefeased or refunded (plus the amount of reasonable expenses incurred in connection therewith);
(ii) any Refinancing Indebtedness incurred by any Subsidiary shall only extend, refunded refinance, renew, replace, defease or defeased, refund Indebtedness of such Subsidiary or any Wholly Owned Subsidiary of the Company;
(2iii) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and Notes; and
(3iv) if applicablethe Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is subordinated in right of payment to the Notes, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders holders of the Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded (any such extension, refinancing, renewal, replacement, defeasance or defeased (refunding, a "PERMITTED REFINANCINGPermitted Refinancing"), ;
(eg) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries;
(h) the incurrence by the Company or its Subsidiaries of Hedging Obligations that are Subsidiary Guarantors, incurred for the purpose of fixing or hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding; and
(fi) the incurrence by the Company of Hedging Obligations Indebtedness (in addition to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by any other clause of this Indenture, (gparagraph) additional Indebtedness in an aggregate principal amount at any time outstanding not to exceed the sum of (A) $10 35 million at any one time outstanding, plus (hB) Capital Lease Obligations up to $40 million of permanent reductions in an aggregate principal amount not to exceed $2 million at any one time outstanding, commitments for Senior Revolving Debt (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness other than pursuant to the Registration Rights Agreement as in effect on mandatory repayment provisions thereof) made since the date of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable SubsidiaryIndenture.
Appears in 1 contract
Samples: Indenture (SFC New Holdings Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), and the Company shall will not issue any Disqualified Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and the Guarantors may incur Indebtedness or issue preferred stock, if (i) the Fixed Charge Consolidated 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 preferred stock is issued would have been at least (a) 2.25 2.0 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 preferred stock or Disqualified Stock had been issued, as the case may be, at the beginning of the four fiscal quarter period.
(b) The provisions of Section 4.09(a) will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(1) the incurrence by the Company and any Restricted Subsidiary of the Company of additional Indebtedness and letters of credit under Credit Facilities 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 the greater of (a) $200.0 million or (b) the amount of the Borrowing Base as of the date of such four-quarter period incurrence, less, in the case of clause (a) above, the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any of its Restricted Subsidiaries since the date of this Indenture to repay any term Indebtedness under a Credit Facility or to repay any revolving credit Indebtedness under a Credit Facility and effect a corresponding commitment reduction thereunder pursuant to Section 4.10 hereof;
(ii2) such the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Company and the Guarantors of Indebtedness is pari passu with or subordinated in right of payment to represented by the Notes and has a Weighted Average Life the related Subsidiary Guarantees to Maturity that is greater than be issued on the remaining Weighted Average Life date of this Indenture and the Exchange Notes and the related Subsidiary Guarantees to Maturity of be issued pursuant to the Notes. The foregoing limitations will not apply to Registration Rights Agreement;
(a4) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of creditfinancing all or any part of the purchase price or cost of design, and construction, installation or improvement of property, plant or equipment used in the business of the Company or any extension, refinancing, renewal, replacement or refunding thereofof its Restricted Subsidiaries, in an aggregate principal amount (or accreted value, as applicable) at any one time outstanding pursuant to this clause (4), including all Permitted Refinancing Indebtedness incurred to refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (4), not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 10.0 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(b5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the Existing net proceeds of which are used to refund, refinance, replace, defease or discharge Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a) or clauses (2), (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes3), (d4), (5), (12) or (13) of this Section 4.09(b);
(6) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries; provided, however, that:
(A) any subsequent issuance or transfer (other than a pledge to secure Indebtedness that is otherwise permitted by this Indenture) of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Guarantor; and
(B) any sale or other transfer of any such Indebtedness (other than a pledge to secure Indebtedness that is otherwise permitted under this Indenture) to a Person that is not either the Company or a Guarantor; will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Guarantor, as the case may be, that was 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 (other than a pledge to secure Indebtedness that are is otherwise permitted by this Indenture) of Equity Interests that results in any such preferred stock being held by a Person other than the Company or a Restricted Subsidiary Guarantorsof the Company; and
(B) any sale or other transfer (other than a pledge to secure Indebtedness that is otherwise permitted by this Indenture) 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 an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (f7);
(8) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business;
(9) the guarantee by the Company or any of the 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 or pari passu with the Notes, then the guarantee shall be subordinated to the same extent as the Indebtedness guaranteed;
(10) the incurrence by the Company or any of Hedging Obligations to protect its Restricted Subsidiaries of Indebtedness in respect of IRBs, workers' compensation claims, self-insurance obligations, bankers' acceptances, performance and surety bonds in the ordinary course of business;
(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 drawn against interest rate risk insufficient funds, so long as such Indebtedness is covered within five Business Days;
(12) Indebtedness arising from agreements of the Company or a Restricted Subsidiary of the Company providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or Capital Stock of a Restricted Subsidiary of the Company; provided that the maximum aggregate liability in respect to variable rate of all such Indebtedness permitted to be incurred shall at no time exceed the gross proceeds actually received by this Indenture, the Company and its Restricted Subsidiary in connection with such disposition;
(g13) the incurrence by any Restricted Subsidiary of the Company of Indebtedness under a Back-to-Back Loan; and
(14) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding pursuant to this clause (14), including all Permitted Refinancing Indebtedness incurred to refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (14), not to exceed $10 million at any 50.0 million. 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 time outstandingof the categories of Permitted Debt described in clauses (1) through (14) above, (h) Capital Lease Obligations in an aggregate principal amount not or is entitled to exceed $2 million at any one time outstandingbe incurred pursuant to Section 4.09(a), (i) purchase money Indebtedness in an aggregate principal amount not the Company will be permitted to exceed $2 million at any one time outstanding, (j) the incurrence classify such item of Indebtedness pursuant to on the Registration Rights Agreement as date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in effect any manner that complies with this Section 4.09. Indebtedness under Credit Facilities outstanding on the date of this Indenture will initially be deemed to have been incurred on such date in reliance on the exemption provided by clause (1) of the definition of Permitted Debt. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms and (k) the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence by of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09; provided, in each such case, that the amount thereof is included in Consolidated Interest Charges of the Company and its Subsidiaries as accrued. Notwithstanding any other provision of Hedging Obligations with respect this Section 4.09, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary of the Company may incur pursuant to long-term Indebtedness this Section 4.09 shall not be deemed to be exceeded solely as a result of an Accounts Receivable Subsidiaryfluctuations in exchange rates or currency values.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issuecontingently or otherwise, assume, guaranty or otherwise become directly or indirectly liable with respect to (collectively, "INCUR") any Indebtedness (including Acquired Debt), Debt and Disqualified Stock) and (ii) the Company shall not issue any Disqualified Stock and shall will not permit any of its Restricted Subsidiaries that is not a Guarantor to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company and the Guarantors may incur Indebtedness (including Acquired Debt and Disqualified Stock) if (i) 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 would have been at least (a) 2.25 2.00 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 at the beginning of such four-quarter period and (ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notesperiod. The foregoing limitations provisions will not apply to any of the following (each and all of which (1) may be issued or incurred, (2) constitutes an independent exception to the foregoing provisions and (3) may be incurred in addition to any other Indebtedness permitted to be incurred under the foregoing paragraph or any other exception): (i) the incurrence by the Company or any Guarantor of Indebtedness constituting term loans pursuant to one or more Credit Agreements in an aggregate principal amount outstanding at any one time not to exceed $250 million (A) less the aggregate amount of all mandatory repayments (a "Mandatory Repayment") of the principal of any term Indebtedness under such Credit Agreements that have been made since the date hereof (or which would otherwise have been required to have been made but for the fact that a prior optional repayment has been made of the principal of any term Indebtedness under such Credit Agreements) pursuant to the amortization schedule of any Credit Agreement (other than any Mandatory Repayment made concurrently with any refinancing or refunding of such Credit Agreements or required to be made with the net proceeds from the offering of the Notes being made hereby) and (B) less the aggregate amount of all Net Proceeds of Asset Sales applied pursuant to clause (a) of the first sentence of the second paragraph under Section 4.10 hereof to permanently reduce Indebtedness under such Credit Agreements; (ii) the incurrence by the Company or any Guarantor pursuant to one or more Credit Agreements of Indebtedness incurred under revolving credit arrangements and letters of credit in an aggregate principal amount at any time outstanding (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company or the relevant Guarantor thereunder) not to exceed the greater of (A) $100.0 million in the aggregate or (B) the sum of (x) 85% of the Company's accounts receivable and (y) 50% of the Company's inventory; (iii) the incurrence by the Company and any Guarantor of Indebtedness represented by the Notes and any Guarantee thereof; (iv) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness represented by (X) Capital Lease Obligations, mortgage financings, purchase money obligations or sale and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereofleaseback transactions, in an each case incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company or such Restricted Subsidiary and (Y) industrial revenue bonds, pollution control bonds or other tax exempt financing; provided the aggregate principal amount of Indebtedness incurred pursuant to this clause (iv) shall not exceed $12.5 million at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, outstanding; (bv) Existing indebtedness; (vi) the incurrence by the Company or any of its Restricted Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Permitted Refinancing Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, refund defease or defeaserefund, Indebtedness incurred pursuant to the immediately preceding paragraph indebtedness (or pursuant to clause any successive refinancing thereof) that was permitted by this Indenture; (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (fvii) the incurrence by the Company or any of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable Subsidiary.Restricted Subsidiaries
Appears in 1 contract
Samples: Indenture (Conmed Corp)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt); provided, however, that, so long as no Default or Event of Default has occurred and is continuing, the Company shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDED, HOWEVER, that the Company may incur Indebtedness (including Acquired Debt) if (i) 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 would have been at least (a) 2.25 2.0 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 at the beginning of such four-quarter period period. The foregoing provisions will not apply to:
(i) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness pursuant to the Bank Credit Facility in an aggregate principal amount not to exceed $50.0 million at any one time outstanding less any Net Proceeds of Asset Sales applied to permanently reduce the Bank Credit Facility pursuant to the provisions described in Section 4.10;
(ii) such the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness is pari passu with or subordinated in right of payment represented by the Senior Subordinated Notes and the Guarantees thereof by any Restricted Subsidiaries pursuant to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notes. The foregoing limitations will not apply to provisions in Section 12.01 hereof;
(aiv) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the purpose of creditfinancing all or any part of the purchase price or cost of construction or improvement of property, and any extension, refinancing, renewal, replacement plant or refunding thereofequipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 5.0 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(bv) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in connection with the Existing acquisition of assets or a new Restricted Subsidiary; provided that such Indebtedness was incurred by the prior owner of such assets or such Restricted Subsidiary prior to such acquisition by the Company or one of its Restricted Subsidiaries and was not incurred in connection with, or in contemplation of, such acquisition by the Company or one of it Restricted Subsidiaries; and provided further that the principal amount (or accreted value, as applicable) of such Indebtedness, together with any other outstanding Indebtedness incurred pursuant to this clause (cv), does not exceed $5.0 million;
(vi) 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, or a Wholly Owned Restricted Subsidiary of the Company, shall be deemed to constitute an incurrence of such Indebtedness by the Company and its Subsidiaries of Indebtedness represented by or such Restricted Subsidiary, as the Notes and the Senior Notes, case may be;
(dvii) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued Permitted Refinancing Debt in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund or defeaseIndebtedness that was permitted by this Indenture to be incurred;
(viii) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt; provided, Indebtedness incurred pursuant that if, and to the immediately preceding paragraph or pursuant extent any such Indebtedness ceases to clause (b)be Non-Recourse Debt of an Unrestricted Subsidiary, (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness event shall not exceed the principal amount be deemed to constitute an incurrence of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have by a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity Restricted Subsidiary of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or Company.
(y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (fix) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging interest rate risk with respect to variable any floating rate Indebtedness indebtedness that is permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date terms of this Indenture and to be outstanding; and
(kx) the incurrence by the Company and its Restricted Subsidiaries of Hedging Obligations with respect additional Indebtedness in an aggregate amount not to long-term Indebtedness of an Accounts Receivable Subsidiaryexceed $7.5 million at any time outstanding.
Appears in 1 contract
Samples: Indenture (Fonda Group Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company Issuers shall not, and shall not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), and the Company Issuers shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries Restricted Subsidiary to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company Issuers may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and any Restricted Subsidiary that is a Subsidiary Guarantor may incur Indebtedness (including Acquired Debt) or issue preferred stock, if (i) the Fixed Charge Coverage Issuers' Leverage Ratio for at the Company's time of incurrence of such Indebtedness or the issuance of such Disqualified Stock or preferred stock, as the case may be, after giving pro forma effect to such incurrence or issuance as of such date and to the use of proceeds therefrom as if the same had occurred at the beginning of the most recently ended four full fiscal quarters quarter period for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred would have been at least (a) 2.25 no greater than 6 to 1, if such date is prior to August 15, 1995 and .
(b) 2.50 to 1 thereafter, in each case determined on a pro forma basis (including a pro forma application The provisions of Section 4.09(a) shall not prohibit the incurrence of any of the net proceeds therefrom) as if the additional following items of Indebtedness had been incurred at the beginning of such four-quarter period and (ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notes. The foregoing limitations will not apply to collectively, "Permitted Debt"):
(a1) the incurrence by the Company Issuers or any of its Subsidiaries the Subsidiary Guarantors of revolving credit additional Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement credit under one or refunding thereof, more Credit Facilities; including the Credit Agreement 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 Issuers and their Restricted Subsidiaries thereunder) not to exceed $25 million, 165.0 million less the aggregate amount of all Net Proceeds of Asset Sales applied by each of the Issuers or any of its Restricted Subsidiaries since the date of this Indenture to repay any term Indebtedness under a Credit Facility or to repay any revolving credit Indebtedness under a Credit Facility and effect a corresponding commitment reduction thereunder pursuant to provisions of Section 4.12.
(2) the incurrence by the Issuers and the Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Issuers and the Guarantors of Indebtedness represented by the Initial Notes (and the related Exchange Notes issued in exchange for any Notes issued under this Indenture) and the incurrence by the Guarantors of the Subsidiary Guarantees;
(4) the incurrence by the Issuers or any Restricted Subsidiary of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Issuers or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (4), not to exceed $5.0 million at any time outstanding;
(5) the incurrence by the Issuers or any Restricted Subsidiary 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 have been applied was incurred under the first paragraph of this covenant or clauses (2), (3), (4), (5) or (13) of this Section 4.09 subject in the case of clauses (4) and (13) to permanently reduce borrowings the limits therein;
(6) the incurrence by the Issuers or any Restricted Subsidiary of intercompany Indebtedness between or among the Issuers and commitments under any Restricted Subsidiary; provided, however, that:
(A) if the Issuers are, or a Guarantor is, the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes or the note guarantees, as the case may be; and
(B) (i) any subsequent issuance or transfer of Equity Interests that results in any such facilityIndebtedness being held by a Person other than the Issuers or a Restricted Subsidiary and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Issuers or a Restricted Subsidiary shall be deemed, PROVIDED that the proceeds in each case, to constitute an incurrence of such Indebtedness by the Issuers or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);
(7) the incurrence by the Issuers or any Restricted Subsidiary of Hedging Obligations that are incurred in the normal course of business and consistent with past business practices for the purpose of fixing or hedging currency, commodity or interest rate risk (including with respect to any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding and not used for acquisitions speculative purposes;
(8) the guarantee by the Issuers or other expenditures any of the Guarantors of Indebtedness of the Issuers or a Restricted Subsidiary that was permitted to be incurred by another provision of this covenant;
(9) the incurrence by the Issuers' Unrestricted Subsidiaries of Non-recourse Debt; provided, however, that if any such Indebtedness ceases to be Non-recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary that was not permitted by this clause (9);
(10) Indebtedness incurred by the Issuers 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 to letters of credit in respect to workers' compensation claims or self-insurance, or other Indebtedness with respect to reimbursement type obligations regarding workers' compensation claims; provided, however, that upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;
(b11) obligations in respect of performance and surety bonds and completion guarantees provided by the Issuers or any Restricted Subsidiary in the ordinary course of business;
(12) the incurrence by the Company Issuers or any of its their Restricted Subsidiaries of Indebtedness arising from the Existing Indebtednesshonoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (cexcept in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within two business days of incurrence; and
(13) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company Issuers or any Restricted Subsidiary of its Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (f) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (13), not to exceed $10 million at any one time outstanding7.5 million.;
(c) For purposes of determining compliance with this covenant, (h) Capital Lease Obligations in the event that an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (13) above as of the date of incurrence thereof or is entitled to be incurred pursuant to the Registration Rights Agreement first paragraph of this covenant as of the date of incurrence thereof, the Issuers shall, in effect their sole discretion, classify in whole or in part on the date of incurrence (or later reclassify in whole or in part) such item of Indebtedness in any manner that complies with this Indenture covenant. Indebtedness under Credit Agreement outstanding on the date on which the Notes are first issued shall be deemed to have been incurred on such date in reliance on the exception provided by clause (1) of the definition of Permitted Debt. Accrual of interest or dividends, the accretion or amortization of accreted value, original issue discount or liquidation preference and (k) the incurrence by the Company and its Subsidiaries changes to amounts outstanding in respect of Hedging Obligations with respect solely as a result of fluctuations in foreign currency, exchange ratios or interest rates or by reason of fees, indemnities and compensation payable thereunder and the payment of interest or dividends in the form of additional Indebtedness or Disqualified Stock shall not be deemed to long-term be an incurrence of Indebtedness or an issuance of an Accounts Receivable SubsidiaryDisqualified Stock for purposes of this Section 4.09.
Appears in 1 contract
Samples: Indenture (CBD Media LLC)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stockStock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness or issue Disqualified Stock and a Restricted Subsidiary may incur Acquired Debt if (i) the Fixed Charge Coverage Ratio ratio of Total Consolidated Indebtedness to Adjusted Consolidated Operating Cash Flow 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 is issued would have been at least (a) 2.25 less than or equal to 16.0 to 1.0, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period and period. The Company shall not incur any Indebtedness (iiincluding Permitted Debt) such Indebtedness that is pari passu with or contractually subordinated in right of payment to any other Indebtedness of the Company unless such Indebtedness is also contractually subordinated to the Notes and has a Weighted Average Life to Maturity on substantially identical terms; provided, however, that is greater than the remaining Weighted Average Life to Maturity no Indebtedness of the Notes. The foregoing limitations will not apply to (a) the incurrence by the Company or any of its Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, in an aggregate principal amount at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, (b) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Notes on terms at least as favorable Company solely by virtue of being unsecured. The provisions of the first paragraph of this Section 4.09 shall not apply to the Holders incurrence of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantorsthe following items of Indebtedness (collectively, "Permitted Debt"):
(fi) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, (g) additional Pari Passu Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an including the aggregate principal amount not of all Permitted Refinancing Indebtedness incurred to exceed $2 million at refund, refinance or replace any one time outstanding, Indebtedness incurred pursuant to this clause (i)), which does not exceed: (a) purchase money Indebtedness in an aggregate principal $500.0 million plus the amount not equal to exceed $2 million at any one time outstanding, (j) the incurrence 125% of Indebtedness pursuant to the Registration Rights Agreement Total Incremental Equity as in effect on of the date of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable Subsidiary.such incurrence;
Appears in 1 contract
Samples: Indenture (Xm Satellite Radio Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable with respect to (collectively, "INCUR") incur any Indebtedness (including Acquired Debt), ) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDED, HOWEVER, that the Company may incur Indebtedness or issue shares of Disqualified Stock and any Guarantor may incur Indebtedness or issue shares of Disqualified Stock or preferred stock, if (i) 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 would have been at least (a) 2.25 2.5 to 11.0, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, in each case determined on a pro forma PRO FORMA basis (including a pro forma 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 period. The foregoing provisions shall not apply to any of the following (each and all of which (x) may be issued or incurred, (y) constitutes an independent exception to the foregoing provisions and (z) may be incurred in addition to any other Indebtedness permitted to be incurred under any other exception):
(i) the incurrence by any one or more of the Company and the Guarantors of Indebtedness and letters of credit pursuant to Credit Agreements (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company or any Guarantor) in an aggregate principal amount not to exceed $20.0 million at any time outstanding; PROVIDED that the amount of Indebtedness permitted to be incurred pursuant to any Credit Agreement in accordance with this clause (i) shall be in addition to any Indebtedness permitted to be incurred pursuant to any Credit Agreement or otherwise in reliance on, and in accordance with, clause (ix) below;
(ii) such the incurrence by the Company of Indebtedness is pari passu with or subordinated represented by the Series A Notes issued on the Issue Date and the Series B Notes issued in right exchange thereof, and the incurrence by any Guarantor of payment to the Notes and has Indebtedness represented by a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notes. The foregoing limitations will not apply to Note Guarantee;
(aiii) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters of credit(A) represented by Capital Lease Obligations, and any extension, refinancing, renewal, replacement mortgage financings or refunding thereofpurchase money obligations, in an each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company or such Restricted Subsidiary, or (B) in connection with sale and leaseback transactions; PROVIDED that the (x) aggregate principal amount of Indebtedness incurred pursuant to this clause (iii), and refinancings thereof, shall not exceed $10.0 million at any one time outstanding and (y) the aggregate principal amount of Indebtedness incurred pursuant to clause (iii)(B), and refinancings thereof, shall not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 5.0 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(biv) Existing Indebtedness;
(v) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refinance, Existing Indebtedness, Indebtedness or Indebtedness that was incurred pursuant to the first paragraph of this covenant or pursuant to clause (cii) the incurrence by above or this clause (v);
(vi) (x) Indebtedness of the Company owed to a Guarantor; PROVIDED, HOWEVER, that upon any such Guarantor ceasing to be a Guarantor or such Indebtedness being owed to any Person other than a Guarantor, the Company shall be deemed to have incurred Indebtedness not permitted by this clause (vi), and (y) Indebtedness of any Restricted Subsidiary of the Company owed to the Company or any of its Subsidiaries other Restricted Subsidiaries; PROVIDED that (a) any such Indebtedness shall be unsubordinated and shall be evidenced by an intercompany note pledged to the Trustee for the benefit of the Holders under the Security Documents and (b) upon such Indebtedness represented being owed to any Person other than the Company or a Restricted Subsidiary, such Restricted Subsidiary, as applicable, shall be deemed to have incurred Indebtedness not permitted by the Notes and the Senior Notes, this clause (dvi);
(vii) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations that are incurred in the ordinary course of business for the purpose of fixing or hedging (a) interest rate risk with respect to any floating rate Indebtedness issued in exchange for, of such Person so long as such floating rate Indebtedness is permitted by the terms of this Indenture to be outstanding or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b)) exchange rate risk with respect to agreements or Indebtedness of such Person payable or denominated in a currency other than U.S. dollars and, in each case, not for speculative purposes;
(c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1viii) the principal amount incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt; PROVIDED that if any such Refinancing Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall not exceed the principal amount be deemed to constitute an incurrence of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) by a Restricted Subsidiary of the Refinancing Indebtedness shall have a Weighted Average Life to Maturity Company in an amount equal to or greater than either then outstanding amount thereof;
(x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (fix) the incurrence by the Company or any Guarantor of Hedging Obligations Indebtedness or issuance of preferred stock (in addition to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted to and preferred stock that may be incurred by or is- sued pursuant to any other clause of this Indenture, (gparagraph) additional Indebtedness in an aggregate principal amount not to exceed $10 25.0 million at any one time outstanding, ;
(hx) Capital Lease Obligations the incurrence by any Foreign Subsidiary of Indebtedness and letters of credit to fund working capital and capital expenditure requirements (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of such Foreign Subsidiary thereunder) in an aggregate principal amount not to exceed $2 15.0 million at any one time outstanding;
(xi) Obligations in respect of performance and surety bonds provided by the Company or any Guarantor in the ordinary course of business; and
(xii) (x) the Guarantee by the Company or any Guarantor of Indebtedness of the Company or any Guarantor and (y) the Guarantee by any Restricted Subsidiary of the Company that is not a Guarantor of Indebtedness of any other Restricted Subsidiary of the Company that is not a Guarantor; PROVIDED that, in each case, the Indebtedness being Guaranteed is permitted to be incurred by another provision of this covenant. 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 described in clauses (i) purchase money Indebtedness in an aggregate principal amount not or (iii) through (xii) above as of the date of incurrence thereof, or is entitled to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness be incurred pursuant to the Registration Rights Agreement first paragraph of this Section 4.09 as of the date of incurrence thereof, the Company shall, in effect its sole discretion, classify such item of Indebtedness on the date of its incurrence and may later reclassify such item of Indebtedness in any manner that complies with this Indenture Section 4.09, except that Indebtedness, if any, incurred or outstanding under any Credit Agreement on the Issue Date shall be deemed to have been incurred under clause (i) above. Accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock shall not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09; PROVIDED, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued. The maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this covenant will not be deemed to be exceeded solely as the result of fluctuations in the exchange rates of currencies. The Company will not, and will not permit any Guarantor to, directly or indirectly, incur any Indebtedness that is or purports to be by its terms (k) the incurrence or by the Company and its Subsidiaries terms of Hedging Obligations with respect any agreement governing such Indebtedness) subordinated to long-term any other Indebtedness of an Accounts Receivable Subsidiarythe 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 Note Guarantee of such Guarantor, to the same extent and in the same manner as such Indebtedness is subordinated to such other Indebtedness of the Company or such Guarantor, as the case may be.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. Section 4.09 of the Indenture is hereby amended in its entirety to read as set forth below: The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and that the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock if (i) 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 is issued would have been at least (a) 2.25 2.0 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period and (ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity period. The provisions of the Notes. The foregoing limitations first paragraph of this Section 4.09 will not apply to the incurrence of any of the following items of Indebtedness (acollectively, "Permitted Debt"):
(i) the incurrence by the Company of Indebtedness and letters of credit (with letters of credit being deemed to have a principal amount equal to the stated amount thereof) and other obligations under Credit Facilities in an aggregate principal amount that does not exceed at any one time $40.0 million less the aggregate amount of all Net Proceeds of Asset Sales applied to repay Indebtedness under a Credit Facility pursuant to Section 4.10 hereof (other than temporary paydowns pending final application of such Net Proceeds);
(ii) the incurrence by the Company and the Guarantors of the Existing Indebtedness and letters of credit (including reimbursement obligations with respect thereto) supporting Existing Indebtedness whether such letters of credit are incurred under the New Credit Facility or otherwise;
(iii) the incurrence by the Company of Indebtedness represented by the Notes;
(iv) the incurrence by the Company or any of its the Guarantors or Non- Guarantor Foreign Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the purpose of creditfinancing all or any part of the purchase price or cost of construction or improvement of property, and any extension, refinancing, renewal, replacement plant or refunding thereofequipment used in the business of the Company or such Subsidiary, in an aggregate principal amount at amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any one time outstanding other Indebtedness incurred pursuant to this clause (iv), not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under 5.0 million at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(bv) the incurrence by the Company or any of its Subsidiaries the Guarantors of Permitted Refinancing Indebtedness in exchange for, or the Existing net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness, ) that is permitted by this Indenture to be incurred under the first paragraph hereof or clauses (cii) the incurrence by the Company and its Subsidiaries or (iv) or (xi) of Indebtedness represented by the Notes and the Senior Notes, this paragraph;
(dvi) the incurrence by the Company or any of its the Restricted Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any Restricted Subsidiary; 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 its Wholly Owned Subsidiaries all Obligations with respect to the Notes and (ii)(A) any subsequent issuance or transfer of Equity Interests that are results in any such Indebtedness being held by a Person other than the Company or a Subsidiary Guarantorsthereof and (B) any sale or transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary thereof shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (fvi);
(vii) the incurrence by the Company or any of the Guarantors of Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging interest rate risk with respect to variable any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding;
(viii) the guarantee by the Company or any of its Subsidiaries or any of the Guarantors of the Indebtedness of the Company or another Subsidiary that was permitted to be incurred by another provision of this IndentureSection 4.09;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt; provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Company that was not permitted by this clause (gix), and the issuance of preferred stock by Unrestricted Subsidiaries;
(x) the incurrence by the Company or any of the Guarantors or Non- Guarantor Foreign Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (x), not to exceed $10 million at any one time outstanding, 5.0 million; and
(h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (jxi) the incurrence by Bidco of Indebtedness pursuant to under the Registration Rights Agreement as in effect on the date of this Indenture Loan Notes and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations Indebtedness with respect to long-term its reimbursement obligation to the issuer of any Loan Notes Guarantees. For purposes of determining compliance with this Section 4.09, 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 (xi) above or is entitled to be incurred pursuant to the first paragraph of this Section 4.09, the Company shall, in its sole discretion, classify such item of Indebtedness in any manner that complies with this Section 4.09. Accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an Accounts Receivable Subsidiaryincurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09; provided, however, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (to the extent not already included in Fixed Charges).
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and that the Company shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company and any Restricted Subsidiary may incur Indebtedness (including Acquired Debt) or issue shares of preferred stock if (i) 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 preferred stock is issued would have been at least (a) 2.25 2.0 to 11.0, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 incurred, or the preferred stock had been issued, as the case may be, at the beginning of such four-quarter period period. The provisions of the first paragraph of this Section 4.09 shall not apply to the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(i) the incurrence by the Company of additional Indebtedness under Credit Facilities (and the guarantee thereof by the Guarantors) in an aggregate principal amount outstanding pursuant to this clause (i) at any one time (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), including all Permitted Refinancing Indebtedness then outstanding incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (i), not to exceed $2,000.0 million less the aggregate amount of all Net Proceeds of Asset Sales applied to repay any such Indebtedness pursuant to Section 4.10;
(ii) such Indebtedness is pari passu with or subordinated the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company and the Guarantors of $1.0 billion in right aggregate principal amount of payment to each of the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of Exchange Notes and the Notes. The foregoing limitations will not apply to Subsidiary Guarantees thereof;
(aiv) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the purpose of creditfinancing all or any part of the purchase price or cost of construction or improvement of property, and any extension, refinancing, renewal, replacement plant or refunding thereofequipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount at amount, including all Permitted Refinancing Indebtedness then outstanding incurred to refund, refinance or replace any one time outstanding other Indebtedness incurred pursuant to this clause (iv), not to exceed $25 million, less 5% of the amount Consolidated Tangible Assets of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under the Company at any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, time outstanding;
(bv) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in connection with the Existing Indebtedness, (c) acquisition of assets or a new Restricted Subsidiary; provided that such Indebtedness was incurred by the incurrence prior owner of such assets or such Restricted Subsidiary prior to such acquisition by the Company or one of its Restricted Subsidiaries and its Subsidiaries of Indebtedness represented was not incurred in connection with, or in contemplation of, such acquisition by the Notes Company or one of its Restricted Subsidiaries; and provided further that the Senior Notesprincipal amount (or accreted value, as applicable) of such Indebtedness, together with any other outstanding Indebtedness incurred pursuant to this clause (dv), does not exceed $250.0 million;
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to extendrefund, refinance, renew, refinance or replace, refund Indebtedness that was permitted by this Indenture to be incurred (other than intercompany Indebtedness or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (bi) above);
(vii) Indebtedness incurred by the Company or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business in respect of workers' compensation claims or self-insurance, or other Indebtedness with respect to reimbursement type obligations regarding workers' compensation claims; provided, however, that 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;
(cviii) Indebtedness arising from agreements of the Company or (g) a Restricted Subsidiary providing for indemnification, adjustment of this paragraph ("REFINANCING INDEBTEDNESS")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; PROVIDEDprovided, HOWEVERhowever, that (1A) such Indebtedness is not reflected on the balance sheet of the Company or any Restricted Subsidiary (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet shall not be deemed to be reflected on such balance sheet for purposes of this clause (A)) and (B) the principal amount maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including noncash proceeds (the fair market value of such Refinancing Indebtedness shall not exceed noncash proceeds being measured at the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, time received and without giving effect to any subsequent changes in value) actually received by the Company and its Restricted Subsidiaries in connection with such disposition;
(2ix) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to incurrence by the Company or greater than either (x) the remaining Weighted Average Life to Maturity any of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity its Restricted Subsidiaries of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries; provided, however, that (A) 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 (B)
(1) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or one of its Restricted Subsidiaries and (2) any sale or other transfer of any such Indebtedness to a Person that are Subsidiary Guarantorsis not either the Company or one of its 49 Restricted Subsidiaries 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;
(fx) the incurrence by the Company or any Restricted Subsidiary of Hedging Obligations to protect that are incurred for the Company against purpose of (A) fixing, hedging or capping interest rate risk with respect to variable any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding or (B) protecting the Company and its Restricted Subsidiaries against changes in currency exchange rates;
(xi) the guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this IndentureSection 4.09;
(xii) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Company that was not permitted by this clause (gxii), and the issuance of preferred stock by Unrestricted Subsidiaries;
(xiii) obligations in respect of performance and surety bonds and completion guarantees provided by the Company or any Restricted Subsidiaries in the ordinary course of business;
(xiv) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness then outstanding incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (xiv), not to exceed $10 million at any one time outstanding, 200.0 million; and
(hxv) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money the incurrence by Foreign Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness then outstanding incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (xv), not to exceed the greater of (a) 5% of such Foreign Subsidiaries' Consolidated Tangible Assets or (b) $2 million at 250.0 million. For purposes of determining compliance with this Section 4.09, 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 (xv) above or is entitled to be incurred pursuant to the first paragraph of this Section 4.09, the Company shall, in its sole discretion, classify, or later reclassify, such item of Indebtedness in any one time outstandingmanner that complies with this covenant. Accrual of interest, (j) the accretion of accreted value and the payment of interest in the form of additional Indebtedness shall not be deemed to be an incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date for purposes of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable SubsidiarySection 4.09.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable with respect to (collectively, "INCUR") Incur any Indebtedness (including Acquired Debt), ) and the Company shall will not issue any Disqualified Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and any Subsidiary Guarantor may incur Indebtedness (including Acquired Debt) or issue preferred stock, if (i) the Fixed Charge Coverage Ratio of the Company 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 (a) 2.25 2.0 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, in each case 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 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 and period.
(iib) such Indebtedness is pari passu with or subordinated in right The provisions of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notes. The foregoing limitations will Section 4.09(a) hereof do not apply to any of the following (acollectively, “Permitted Debt”):
(1) the incurrence Incurrence by the Company or and any Subsidiary Guarantor of its Subsidiaries of revolving credit additional Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, credit under Credit Facilities 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 $25 millionUS$2 billion, less the aggregate amount of all Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, (b) the incurrence by the Company or any of its Restricted Subsidiaries of since the Existing Indebtedness, date hereof to repay any term Indebtedness Incurred pursuant to this clause (c1) or to repay any revolving credit indebtedness Incurred under this clause (1) and effect a corresponding commitment reduction thereunder pursuant to Section 4.10 hereof;
(2) the incurrence Incurrence by the Company and its Restricted Subsidiaries of Indebtedness existing on the date hereof (other than Indebtedness described in clauses (1) and (3) of this Section 4.09(b));
(3) the Incurrence by the Company and the Subsidiary Guarantors of Indebtedness represented by the Notes (other than Additional Notes) and the Senior Notes, related Note Guarantees;
(d4) the incurrence Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, Incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation 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 renew, refund, refinance, replace, defease or discharge any Indebtedness Incurred pursuant to this clause (4), not to exceed the greater of (x) US$50.0 million and (y) 2.0% of Total Assets;
(5) the Incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extendrenew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under the first paragraph of this covenant or clauses (2), (3), (4), (5) or (15) of this Section 4.09(b);
(6) (a) Obligations in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance, bid, appeal and surety bonds and completion or performance guarantees (including the guarantee of any land grant) provided by the Company or any Restricted Subsidiary in the ordinary course of business and (b) Indebtedness constituting reimbursement obligations with respect to letters of credit or trade or bank guarantees (including for land grants) issued in the ordinary course of business to the extent that such letters of credit, trade or bank guarantees (including for land grants) are not drawn upon or, if drawn upon, to the extent such drawing is reimbursed no later than thirty (30) days following receipt of a demand for reimbursement;
(7) the Incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and/or 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 then due with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Subsidiary Guarantor; 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 an Incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (7);
(8) 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 an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (8).
(9) 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;
(10) the guarantee 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 or pari passu with the Notes, then the guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(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 drawn against insufficient funds, so long as such Indebtedness is extinguished within five (5) Business Days of its Incurrence;
(12) Indebtedness arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guarantees or letters of credit, surety bonds, or performance bonds securing any obligation of the Company or any Restricted Subsidiary pursuant to such agreements, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or Capital Stock of a Restricted Subsidiary of the Company, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition; provided, that the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received in connection with such disposition;
(13) Obligations in respect of Shareholder Subordinated Debt;
(14) any guarantees made solely in connection with (and limited in scope to) the giving of a Lien of the type specified in clause (22) of “Permitted Liens” to secure Indebtedness of an Unrestricted Subsidiary, the only recourse of which to the Company and its Restricted Subsidiaries is to the Equity Interests subject to the Liens;
(15) Indebtedness of any Person Incurred and outstanding on the date on which such Person becomes a Restricted Subsidiary of the Company or any Restricted Subsidiary or is merged, consolidated, amalgamated or otherwise combined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Company or any Restricted Subsidiary (other than Indebtedness Incurred (i) to provide all or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Company or a Restricted Subsidiary or (ii) otherwise in connection with or contemplation of such acquisition); provided, however, with respect to this clause, that at the time of such acquisition or other transaction, the Company would have been able to Incur US$1.00 of additional Indebtedness pursuant to this Section 4.09 after giving pro forma effect to the relevant acquisition and the Incurrence of such Indebtedness pursuant to this clause (15); and
(16) the Incurrence by the Company or the Subsidiary Guarantors of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness Incurred to renew, refund, refinance, replace, refund defease or defease, discharge any Indebtedness incurred Incurred pursuant to the immediately preceding paragraph or pursuant to this clause (b16), not to exceed US$50.0 million. The Company will not Incur, and will not permit any Subsidiary Guarantor to Incur, any Indebtedness (cincluding Permitted Debt) or (g) that is contractually subordinated in right of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing payment to any other Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Company or such Subsidiary Guarantor unless such Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be is also contractually subordinated in right of payment to the Notes and the applicable Note Guarantee on terms at least as favorable substantially identical terms; provided, however, that no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Holders Company solely by virtue of Notes as those contained being unsecured or by virtue of being secured on a first or junior Lien basis. For purposes of determining compliance with this Section 4.09, in the documentation governing event that an item of proposed Indebtedness meets the Indebtedness being extendedcriteria of more than one of the categories of Permitted Debt described in clauses (1) through (16) above, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (f) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted is entitled to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness Incurred pursuant to the Registration Rights Agreement as in effect first paragraph of this covenant, the Company will be 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 Indenture Section 4.09. Indebtedness under the Credit Facilities outstanding on the date on which Notes are first issued and authenticated hereunder will initially be deemed to have been incurred in reliance on the exception provided by clause (k1) of the incurrence by definition of Permitted Debt. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an Incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09; provided, in each such case, that the amount of any such accrual, accretion or payment is included in Fixed Charges of the Company and its Subsidiaries as accrued. Notwithstanding any other provision of Hedging Obligations with respect this Section 4.09, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may Incur pursuant to long-term Indebtedness this Section 4.09 shall not be deemed to be exceeded solely as a result of an Accounts Receivable Subsidiaryfluctuations in exchange rates or currency values.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall will not, and shall will not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), Indebtedness) and that the Company shall will not issue any Disqualified Stock and shall will not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that (x) the Company may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock and (y) a Guarantor may incur Acquired Indebtedness, in each case if (i) 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 is issued would have been at least (a) 2.25 ____ to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period period. The Company may not incur Funded Indebtedness (except as provided below) unless the above Fixed Charge Coverage Ratio is met and (ii) such Indebtedness is pari passu unless broadcast television assets are acquired with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notesloan proceeds. The foregoing limitations provisions will not apply to to:
(ai) Funded Indebtedness of the incurrence Company existing on the date of this Indenture (and guarantees thereof by the Company or any of its Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, Guarantors) in an aggregate principal amount at any one time outstanding not to exceed $25 million, 7.3 million less the aggregate amount of all Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, pursuant to Section 4.10.;
(bii) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, incurrence by the Guarantors of Indebtedness represented by the Subsidiary Guarantees;
(diii) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued represented by Capital Lease Obligations (whether or not incurred pursuant to sale and leaseback transactions), mortgage financing or purchase money obligations, in each case incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Subsidiary, in an aggregate principal amount not to exceed $___ million at any time outstanding;
(iv) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, refund defease or defeaserefund, Existing Indebtedness or Indebtedness that was permitted by this Indenture to be incurred (other than any such Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (bi), (cii), (iii), (v), (vi), (vii) (viii) or (gix) of this paragraph paragraph);
("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1v) the principal amount incurrence by the Company or any of such Refinancing Indebtedness shall not exceed the principal amount its Wholly Owned Subsidiaries of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries Subsidiaries; provided, however, that are (i) if the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinate to the payment in full 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 a Wholly Owned Subsidiary Guarantorsand (B) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(fvi) the incurrence by the Company of Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging interest rate risk with respect to variable rate Indebtedness that is permitted by the terms of this Indenture to be incurred by this Indenture, incurred;
(g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (jvii) the incurrence of Indebtedness pursuant to of a Guarantor represented by guarantees of Indebtedness of the Registration Rights Agreement as Company that has been incurred in effect on accordance with the date terms of this Indenture and Indenture;
(kviii) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect Funded Indebtedness for working capital (in addition to long-term Indebtedness permitted by any other clause of this paragraph) in an Accounts Receivable Subsidiaryaggregate principal amount (or accreted value, as applicable) at any time outstanding not to exceed $3.0 million; and
(ix) the incurrence by the Company of Funded Indebtedness for leasehold improvements (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount (or accreted value, as applicable) at any time outstanding not to exceed $3.0 million.
Appears in 1 contract
Samples: Indenture (Shop at Home Inc /Tn/)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCUR"“incur,” with “incurrence” having a correlative meaning) any Indebtedness (including Acquired Debt), and the Company shall will not issue any Disqualified Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) and issue Disqualified Stock, and Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) and issue preferred stock, 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 preferred stock is issued, as the case may be, would have been at least (a) 2.25 to 11.0, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 preferred stock had been issued, as the case may be, at the beginning of such four-quarter period and (ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notes. The foregoing limitations will not apply to (a) the incurrence by the Company or any of its Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, in an aggregate principal amount at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, period.
(b) Notwithstanding the foregoing, Section 10.11(a) will not prohibit the incurrence by the Company or of any of its Subsidiaries the following (the items of the Existing Indebtedness, Indebtedness described below in this Section 10.11(b) being referred to collectively as “Permitted Debt”):
(ci) the incurrence by the Company and its Subsidiaries any Restricted Subsidiary of Indebtedness represented by the Notes and the Senior Notes, (d) the incurrence by the Company or any letters of its Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (f) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, (g) additional Indebtedness credit under Credit Facilities in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable Subsidiary.amount
Appears in 1 contract
Samples: Twelfth Supplemental Indenture (Plains Exploration & Production Co)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company Iron Mountain shall not, and shall not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, create, incur, issue, assume, guaranty Guarantee or otherwise become directly or indirectly liable with respect to (or, collectively, "INCUR"“incur”) any Indebtedness (including Acquired Debt), ) and the Company shall not issue any Disqualified Stock and Iron Mountain shall not permit any of its Subsidiaries Restricted Subsidiary to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company Iron Mountain may incur Indebtedness if (i) and may permit a Restricted Subsidiary to incur Indebtedness or issue preferred stock if, at 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 time of such additional Indebtedness is incurred would have been at least (a) 2.25 to 1, if such date is prior to August 15, 1995 incurrence or issuance and (b) 2.50 to 1 thereafter, in each case determined after giving effect thereto on a pro forma basis Pro Forma Basis (including a pro forma application of the net proceeds therefrom) ), the Fixed Charge Coverage Ratio for the four full fiscal quarters immediately preceding such incurrence or issuance for which internal financial statements are available, taken as if the additional Indebtedness had one period, would have been incurred at the beginning of such four-quarter period and (ii) such Indebtedness is pari passu with or subordinated in right of payment least 2.0 to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notes1.0. The foregoing limitations will shall not apply to to:
(a1) the incurrence by the Company Iron Mountain or any Restricted Subsidiary of its Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, credit under Credit Facilities 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 Iron Mountain and the Restricted Subsidiaries thereunder) not to exceed $25 3,260.0 million;
(2) the issuance of the Note Guarantees;
(3) the incurrence by Iron Mountain and the Restricted Subsidiaries of the Existing Indebtedness;
(4) the issuance of the Notes on the date hereof;
(5) the incurrence by Iron Mountain and the Restricted Subsidiaries of Financing Lease Obligations, less mortgage financings and/or Indebtedness constituting purchase money obligations, including all Refinancing Indebtedness incurred with respect thereto, up to an aggregate at any one time outstanding of the amount greater of Net Proceeds (i) $250.0 million and (ii) 5.0% of Asset Sales that have been applied to permanently reduce borrowings Consolidated Total Assets as of any date of incurrence;
(6) the incurrence or issuance of Indebtedness or preferred stock between (i) Iron Mountain and commitments under any such facilitythe Restricted Subsidiaries and (ii) the Restricted Subsidiaries;
(7) the incurrence by Iron Mountain and the Restricted Subsidiaries of Hedging Obligations not for purposes of speculation;
(8) the incurrence by Iron Mountain and the Restricted Subsidiaries in respect of performance bonds, PROVIDED that the proceeds bankers’ acceptances, workers’ compensation claims, surety, bid, appeal or similar bonds, completion guarantees, payment obligations in connection with self-insurance or similar obligations, and bank overdrafts (and letters of such Indebtedness are not used for acquisitions or other expenditures not credit in respect thereof) in the ordinary course of business, ;
(b9) the incurrence by Iron Mountain and the Company or any of its Restricted Subsidiaries of Indebtedness consisting of “earn-out” obligations, Guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the Existing Indebtednessacquisition or disposition of assets, including, without limitation, shares of Capital Stock;
(c10) the incurrence by the Company and its Subsidiaries Iron Mountain or any Restricted Subsidiary of Indebtedness represented arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within five (5) Business Days;
(11) the Guarantee by Iron Mountain, the Issuer or any Subsidiary Guarantor of Indebtedness of Iron Mountain or a Restricted Subsidiary and the Guarantee by any non-Guarantor Subsidiary (other than the Issuer) of Indebtedness of another non-Guarantor Subsidiary, in each case, to the extent that the Guaranteed Indebtedness was permitted to be incurred by another provision of this Section 4.10; provided that if the Indebtedness being Guaranteed is contractually subordinated to the Notes and or the Senior NotesNote Guarantees, as applicable, then the Guarantee must be subordinated to the same extent as the Indebtedness Guaranteed;
(d12) the incurrence by Iron Mountain and the Company or any of its Restricted Subsidiaries of Refinancing Indebtedness issued in exchange for, or the proceeds of which are used to repay redeem, defease, extend, refinance, renew, replace or refund, Indebtedness (other than intercompany Indebtedness) referred to in clauses (2) through (5) above, this clause (12) or clause (13) below or that was otherwise permitted to be incurred pursuant to the test set forth in the first paragraph of this Section 4.10;
(13) the incurrence by Iron Mountain or any Restricted Subsidiary of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, refund defease or defease, discharge any Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to this clause (b13), not to exceed $50.0 million;
(c14) Acquired Debt and any other Indebtedness incurred to finance a merger, consolidation or other acquisition; provided that on a Pro Forma Basis, either (gA) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity Iron Mountain’s Fixed Charge Coverage Ratio would be equal to or greater than either Iron Mountain’s Fixed Charge Coverage Ratio immediately prior to such merger, consolidation or other acquisition or (B) Iron Mountain would have been able to incur at least $1.00 of additional Indebtedness pursuant to the first paragraph of this Section 4.10;
(15) Indebtedness the net proceeds of which have been deposited in escrow to finance the repayment or redemption of such Indebtedness pursuant to customary escrow arrangements pending the release thereof;
(16) Indebtedness that has been discharged;
(17) Indebtedness deemed to exist pursuant to the terms of a Joint Venture agreement as a result of a failure of Iron Mountain or a Restricted Subsidiary to make a required capital contribution therein; provided that the only recourse on such Indebtedness is limited to Iron Mountain’s or such Restricted Subsidiary’s equity interests in the related Joint Venture;
(i) Indebtedness representing deferred compensation to employees of Iron Mountain or any of its Restricted Subsidiaries incurred in the ordinary course of business, and (ii) Indebtedness consisting of obligations of Iron Mountain or any of its Restricted Subsidiaries under deferred compensation or other similar arrangements incurred by such Person in connection with any Investment permitted under Section 4.9; and
(19) Indebtedness of Iron Mountain or any Restricted Subsidiary in an aggregate principal amount up to 100% of the Equity Proceeds received by Iron Mountain after the Issue Date from the issue or sale of Equity Interests of Iron Mountain or cash contributed to the capital of Iron Mountain (in each case, other than proceeds of Disqualified Stock or sales of Equity Interests to Iron Mountain or any of its Subsidiaries) to the extent such Equity Proceeds have not been applied pursuant to clause (iii)(b) of the first paragraph of Section 4.9, or clause (2) or clause (9) of the second paragraph of Section 4.9, to make Restricted Payments, and provided, that any such Equity Proceeds shall be excluded for purposes of making Restricted Payments pursuant to any of clause (iii)(b) of the first paragraph of Section 4.9, or clause (2) or clause (9) of the second paragraph of Section 4.9, to the extent Iron Mountain or any Restricted Subsidiary incur Indebtedness in reliance thereon. Notwithstanding the foregoing, Restricted Subsidiaries other than the Issuer that are non-Guarantor Subsidiaries will not be permitted to incur Indebtedness or issue preferred stock pursuant to the first paragraph of this Section 4.10 or clause (13) above if, after giving effect to such incurrence or issuance, the aggregate principal amount of Indebtedness of such Restricted Subsidiaries other than the Issuer that are non-Guarantor Subsidiaries (excluding intercompany Indebtedness between or among Iron Mountain and the Restricted Subsidiaries) outstanding pursuant to such first paragraph or such clause, together with the aggregate liquidation preference of preferred stock issued by such Restricted Subsidiaries other than the Issuer that are non-Guarantor Subsidiaries (excluding intercompany preferred stock issued between or among Iron Mountain and the Restricted Subsidiaries) outstanding pursuant to such provisions, would exceed the greater of (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or $1.25 billion and (y) 1.25x Adjusted EBITDA as of any date of incurrence. Iron Mountain will not incur, and Iron Mountain will not permit the remaining Weighted Average Life Issuer or any Subsidiary Guarantor to Maturity incur, any Indebtedness that is contractually subordinated in right of the Notes and (3) if applicablepayment to any other Indebtedness of Iron Mountain, the Refinancing Issuer or such Subsidiary Guarantor unless such Indebtedness shall be is also contractually subordinated in right of payment to the Notes and the applicable Note Guarantee on terms at least as favorable substantially identical terms; provided, however, that no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of Iron Mountain, the Holders Issuer or a Subsidiary Guarantor solely by virtue of Notes as those contained being unsecured or by virtue of being secured on a junior priority basis. For purposes of determining compliance with this Section 4.10, for the avoidance of doubt, in the documentation governing event that an item of Indebtedness meets the Indebtedness being extendedcriteria of more than one of the categories of permitted debt described in clauses (1) through (19) above, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (f) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted is entitled to be incurred pursuant to the first paragraph of this Section 4.10, Iron Mountain will be 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 4.10. Indebtedness under the Credit Agreement outstanding on the date on which Notes are first issued and authenticated under this Indenture will at all times be deemed to have been incurred on such date in reliance on the exception provided by this Indentureclause (1) above. The accrual of interest or preferred stock dividends, (g) the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on preferred stock or Disqualified Stock in the form of additional shares of the same class of preferred stock or Disqualified Stock will not be deemed to be an aggregate principal incurrence of Indebtedness or an issuance of preferred stock or Disqualified Stock for purposes of this Section 4.10; provided, in each such case, that the amount not to exceed $10 million at thereof is included in the Consolidated Interest Expense of Iron Mountain as accrued. For purposes of determining compliance with any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) U.S. Dollar-denominated restriction on the incurrence of Indebtedness, the U.S. Dollar-equivalent principal amount of Indebtedness pursuant denominated in a currency other than U.S. Dollars will be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred; provided that if such Indebtedness is incurred to extend, replace, refund, refinance, renew or defease, or that is exchanged for, other Indebtedness denominated in a currency other than U.S. Dollars, and such extension, replacement, refunding, refinancing, renewal, defeasance or exchange would cause the Registration Rights Agreement as applicable U.S. Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such extension, replacement, refunding, refinancing, renewal, defeasance or exchange, such U.S. Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed, defeased or exchanged. Notwithstanding any other provision of this Section 4.10, the maximum amount of Indebtedness that Iron Mountain or any Restricted Subsidiary may incur pursuant to this Section 4.10 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values. The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(3) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(i) the Fair Market Value of such assets at the date of determination; and
(ii) the amount of the Indebtedness of the other Person. In connection with the incurrence of (i) revolving loan Indebtedness under this Section 4.10 or (ii) any commitment relating to the incurrence of Indebtedness under this Section 4.10 and (in respect of both (i) and (ii)) the granting of any Lien to secure any such Indebtedness, Iron Mountain or the applicable Restricted Subsidiary may designate, such incurrence and the granting of any such Lien as having occurred on the date of first incurrence of such revolving loan Indebtedness or commitment (such date, the “Deemed Date”), and any related subsequent actual incurrence or granting of any such Lien therefor will be deemed for all purposes under this Indenture to have been incurred or granted on such Deemed Date, including, without limitation, for purposes of calculating the Senior Leverage Ratio and usage of any other baskets or ratios under this Indenture (as applicable). The amount of Indebtedness that may be incurred pursuant to any provision of this Section 4.10 or secured pursuant to Section 4.11 (i) shall be deemed to include all amounts necessary to renew, refund, redeem, refinance, replace, restructure, defease or discharge any such Indebtedness incurred and/or secured pursuant to such provisions, including after giving effect to additional Indebtedness in an amount equal to the aggregate amount of fees, premia, underwriting discounts and other costs and expenses incurred in connection with such renewal, refund, redemption, refinancing, replacement, restructuring, defeasance or discharge; and (kii) the incurrence by the Company and its Subsidiaries in any case where such amounts are or may be based on Consolidated Total Assets or Adjusted EBITDA (or any ratio of Hedging Obligations which Adjusted EBITDA is a component), shall not be deemed to be exceeded, with respect to long-term such incurrence or grant of Lien, due solely to the result of fluctuations in the amount of Consolidated Total Assets or Adjusted EBITDA (and, for the avoidance of doubt, such Indebtedness of an Accounts Receivable Subsidiaryand such Lien will be permitted to be refinanced or replaced notwithstanding that, after giving effect to such refinancing or replacement, such excess will continue).
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCUR") any Indebtedness (including Acquired Debt), and the Company shall will not issue any Disqualified Stock and shall not permit any of its Subsidiaries to issue any shares of preferred stockStock; PROVIDED, HOWEVER, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and a Guarantor may incur Indebtedness (including Acquired Debt) if (i) 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 (a) 2.0 to 1 on or prior to the first anniversary of the date hereof, 2.25 to 11 after the first anniversary of the date hereof but before the second anniversary of the date hereof, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafterafter the second anniversary of the date hereof, 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, at the beginning of such four-quarter period period. The first paragraph of this covenant will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "PERMITTED DEBT"):
(1) the incurrence by the Company and any Guarantor of Indebtedness and letters of credit under a First Lien Credit Facility in an aggregate principal amount at any one time outstanding under this clause (ii1) (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 $10.0 million, less the aggregate amount of all repayments of term Indebtedness under such First Lien Credit Facility and all repayments of revolving credit Indebtedness is pari passu under such First Lien Credit Facility effected with or subordinated in right a corresponding commitment reduction under such First Lien Credit Facility pursuant to clause (1) of payment to the second paragraph under Section 4.10;
(2) Indebtedness existing on the date of this Indenture (other than any Indebtedness repaid on the date of this Indenture with the net proceeds from the sale of the Notes, including Indebtedness under the Existing Credit Agreement);
(3) the incurrence by the Company and the Guarantors of Indebtedness represented by the Notes and has a Weighted Average Life the related Note Guarantees to Maturity that is greater than be issued on the remaining Weighted Average Life date of this Indenture and the exchange Notes and the related Note Guarantees to Maturity of be issued pursuant to the Notes. The foregoing limitations will not apply to Registration Rights Agreement;
(a4) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness and letters represented by Capital Lease Obligations, mortgage financings, industrial revenue bonds, purchase money obligations or other Indebtedness, in each case, incurred for the purpose of creditfinancing all or any part of the purchase price or cost of design, and construction, installation or improvement of property (real or personal), plant or equipment used in the Permitted Business of the Company or any extension, refinancing, renewal, replacement or refunding thereofof its Restricted Subsidiaries, in an aggregate principal amount at amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any one time outstanding Indebtedness incurred pursuant to this clause (4), not to exceed $25 8.0 million at any time outstanding, provided that in no event shall the Indebtedness incurred pursuant to clause (2) and this clause (4) exceed an aggregate of $14.0 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, ;
(b5) the incurrence by the Company or any of its Restricted Subsidiaries of the Existing Indebtedness, (c) the incurrence Permitted Refinancing Indebtedness or issuance by the Company and its Subsidiaries of Disqualified Stock in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness represented (other than intercompany Indebtedness) or Disqualified Stock issued by the Notes and Company that was permitted by this Indenture to be incurred under the Senior first paragraph of this covenant or clauses (2) (other than any Indebtedness under clause (2) repaid after the date of this Indenture with the net proceeds from the sale of the Notes), (d3) or (5) of this paragraph;
(6) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries; PROVIDED, HOWEVER, that:
(A) if the Company or any Guarantor is the obligor on such Indebtedness and the payee is not the Company or a Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor; 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 an incurrence of such Indebtedness, in an amount equal to the portion of such Indebtedness held by such Person, by the Company or such Restricted Subsidiary, as the case may be, that was 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 are results in any such Preferred Stock being held by a Person other than the Company or a Restricted Subsidiary Guarantorsof 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 an issuance of such Preferred Stock by such Restricted Subsidiary that was not permitted by this clause (f7);
(8) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business;
(9) the guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this covenant; PROVIDED that if the Indebtedness being guaranteed is subordinated to or PARI PASSU with the Notes, then the Guarantee shall be subordinated or PARI PASSU, as applicable, to the same extent as the Indebtedness guaranteed;
(10) the incurrence by the Company or any of Hedging Obligations the Guarantors of Indebtedness in respect of workers' compensation claims, payment obligations in connection with health or other types of social security benefits, unemployment or other insurance or self-insurance obligations, statutory obligations, bankers' acceptances, performance, reclamation, surety or similar bonds and letters of credit and completion or performance guarantees (including, without limitation, performance guarantees pursuant to protect coal supply agreements or equipment leases) in the ordinary course of business, including any such Indebtedness incurred in connection with the acquisition of additional mining assets;
(11) the incurrence by the Company or any of its Restricted Subsidiaries the Guarantors of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against interest rate risk insufficient funds, so long as such Indebtedness is covered within five Business Days;
(12) the incurrence of Indebtedness arising from agreements of the Company or any of its Restricted Subsidiaries providing for indemnification, adjustment of purchase price or similar obligations, in each case incurred in connection with respect to variable rate the disposition of any business, assets or Subsidiary, other than guarantees of Indebtedness permitted to be incurred by this Indenturean Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition; or
(g13) the incurrence by the Company or any of the Guarantors of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (13), not to exceed $10 million at 5.0 million. The Company will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Note Guarantee on substantially identical terms; PROVIDED, HOWEVER, that no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company solely by virtue of being unsecured or by virtue of being secured on a first or junior Lien basis. For purposes of determining compliance with this Section 4.09(a), in the event that an item of proposed Indebtedness meets the criteria of more than one time outstandingof the categories of Permitted Debt described in clauses (1) through (13) above, (h) Capital Lease Obligations in an aggregate principal amount not or is entitled to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness be incurred pursuant to the Registration Rights Agreement as in effect first paragraph of this covenant, the Company will be 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 Indenture covenant. Indebtedness under a First Lien Credit Facility will be deemed to have been incurred on such date in reliance on the exception provided by clause (1) of the definition of Permitted Debt. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of Preferred Stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this covenant; provided, in each such case, that the amount of any such accrual, accretion or payment is included in Fixed Charges of the Company as accrued. Notwithstanding any other provision of this covenant, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this covenant shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values. The amount of any Indebtedness outstanding as of any date will be:
(k1) the incurrence by accreted value of the Company and its Subsidiaries Indebtedness, in the case of Hedging Obligations any Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(3) in respect to long-term of Indebtedness of an Accounts Receivable Subsidiaryanother Person secured by a Lien on the property and assets of the specified Person, the lesser of:
(A) the Fair Market Value of such property and assets at the date of determination; and
(B) the amount of the Indebtedness of the other Person.
Appears in 1 contract
Samples: Indenture (National Coal Corp)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Except as provided below, the Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, indirectly create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and the Company shall not issue any Disqualified Stock and shall not permit any of its Subsidiaries Subsidiary to issue any shares Disqualified Stock. The Company and any Subsidiary Guarantor shall not incur any Indebtedness (other than Existing Indebtedness) that is contractually subordinated to any other Indebtedness of preferred stock; PROVIDED, HOWEVER, that the Company may incur Indebtedness if (i) 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 or such additional Indebtedness is incurred would have been at least (a) 2.25 to 1Subsidiary Guarantor, if such date is prior to August 15respectively, 1995 and (b) 2.50 to 1 thereafter, 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 at the beginning of such four-quarter period and (ii) unless such Indebtedness is pari passu with or also contractually subordinated in right of payment to the Senior Notes and has a Weighted Average Life to Maturity or the Subsidiary Guarantee of such Subsidiary Guarantor, respectively, on substantially identical terms; provided, however, that is greater than the remaining Weighted Average Life to Maturity no Indebtedness of the NotesCompany or any Subsidiary Guarantor shall be deemed to be contractually subordinated to any other Indebtedness of the Company or such Subsidiary Guarantor, respectively, solely by virtue of being unsecured. The foregoing limitations will provisions of the first paragraph of this covenant shall not apply to the incurrence of any of the following items of Indebtedness (acollectively, "Permitted Debt"):
(i) the incurrence by the Company or any Subsidiary Guarantor of its Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, in an under the Credit Facilities; provided that the aggregate principal amount at of all Indebtedness (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) outstanding under all Credit Facilities after giving effect to such incurrence, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any one time outstanding other Indebtedness incurred pursuant to this clause (i), does not exceed an amount equal to exceed the greater of (x) $25 million, less 60.0 million or (y) the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, Borrowing Base;
(bii) the incurrence by any Foreign Subsidiary of Indebtedness under the Foreign Credit Facilities; provided that the aggregate principal amount of all Indebtedness (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of Foreign Subsidiaries thereunder) outstanding under all Foreign Credit Facilities after giving effect to such incurrence, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (ii), does not exceed an amount equal to the greater of (x) $15.0 million or (y) the Foreign Borrowing Base, and provided that such Indebtedness shall not be guaranteed by or secured by any of the assets of the Company or any of its Subsidiaries of the Existing Indebtedness, Subsidiary Guarantors;
(ciii) the incurrence by the Company and its Subsidiaries of the Existing Indebtedness;
(iv) the incurrence by the Company and the Subsidiary Guarantors of Indebtedness represented by the Senior Notes and the Subsidiary Guarantees, respectively, or represented by the Company's obligation to make an aggregate cash payment of $17.5 million to holders of the Senior Notes, Notes on account of the prior exchange of the Company's 11% Senior Notes due 2007;
(dv) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued represented by Capital Lease Obligations, sale and leaseback transactions, mortgage financings, purchase money obligations, Capital Expenditures or similar financing transactions, in each case, with respect to the respective properties, assets and rights of the Company or such Subsidiary as of the date hereof or hereafter acquired, in an aggregate principal amount (or accreted value, as applicable), not to exceed $600,000 in any calendar year, exclusive of Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (v);
(vi) the incurrence by the Company or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extendrefund, refinance, renew, replace, refund refinance or defease, replace any Indebtedness incurred pursuant that was permitted by this Indenture to the immediately preceding paragraph or pursuant to clause be incurred;
(b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1vii) the principal amount of such Refinancing Indebtedness shall not exceed incurrence by the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded Company or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity any of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity Subsidiary Guarantors of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Indenture Subsidiary Guarantors; provided, however, that (fi) if the Company or a Subsidiary Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Senior Notes and the Subsidiary Guarantees, respectively, 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 a Subsidiary Guarantor and (B) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Subsidiary Guarantor shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be that was not permitted by this clause (vii);
(viii) the incurrence by the Company or any of its Subsidiaries of Hedging Obligations to protect in the ordinary course of business of the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, or any of its Subsidiaries; and
(g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (jix) the incurrence of Indebtedness to N.E.S. Investment Co. (or an Affiliate thereof) in an original principal amount of up to $12.0 million that is contractually subordinated to the Senior Notes on terms reasonably satisfactory to the Trustee. 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 (viii) above, the Company shall, in its sole discretion, classify such item of Indebtedness in any manner that complies with this Section 4.09 and such item of Indebtedness will be treated as having been incurred pursuant to only one of such clauses. Accrual of interest, the Registration Rights Agreement accretion of accreted value and the payment of interest in the form of additional Indebtedness (so long as in effect on such additional Indebtedness is unsecured and contractually subordinated to the date Senior Notes) will not be deemed to be an incurrence of Indebtedness for purposes of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable SubsidiarySection 4.09.
Appears in 1 contract
Samples: Indenture (Goodman Conveyor Co)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company Issuer shall not, and shall not permit any of its the Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable for, contingently or otherwise (including by way of merger, consolidation or acquisition) (collectively, to "incur"), with respect to (collectively, "INCUR") any Indebtedness (including Acquired Debt), and ----- the Company Issuer shall not issue or incur any Disqualified Stock and shall not permit any of its the Restricted Subsidiaries to issue or incur any shares of preferred stock; PROVIDED, HOWEVER, that Preferred Stock unless the Company may incur Indebtedness if (i) Consolidated Leverage Ratio at the Fixed Charge Coverage Ratio for end of the CompanyIssuer's most recently ended four full fiscal quarters quarter for which internal financial statements are available immediately preceding a consolidated balance sheet of the date on which such additional Indebtedness is incurred Issuer has been filed with the Commission or provided to the Purchasers pursuant to Section 6.01 would have been at least (a) 2.25 equal to 1or less than 6.0 to 1.0, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, in each case determined on a pro forma basis (including a pro forma application of the net proceeds therefrom).
(i) as Indebtedness of the Issuer such that, after giving effect to the incurrence thereof, the total aggregate principal amount of Indebtedness incurred under this clause (i) and any refinancings thereof otherwise incurred in compliance with this Agreement would not exceed 100% of Total Incremental Equity if the additional Indebtedness had been incurred at the beginning such incurrence is prior to an IPO Liquidity Event or 125% of Total Incremental Equity if such four-quarter period and incurrence is on or after an IPO Liquidity Event;
(ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notes. The foregoing limitations will not apply to (a) the incurrence by the Company Issuer or any of its Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, in an aggregate principal amount at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, (b) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Subsidiaries Restricted Subsidiary of Indebtedness represented by the Notes and the Senior Exchange Notes;
(iii) the incurrence of Indebtedness by the Issuer owing to any Restricted Subsidiary or Indebtedness of any Restricted Subsidiary owing to the Issuer or any Restricted Subsidiary (but such Indebtedness shall be deemed to be incurred upon such Indebtedness being held by any Person other than the Issuer or such Restricted Subsidiary including upon Designation and upon such Restricted Subsidiary otherwise no longer being a Restricted Subsidiary); provided that in the case of Indebtedness of the Issuer, such obligations shall be unsecured and subordinated in all respects to the Issuer's obligations pursuant to the Notes;
(div) the incurrence by the Company Issuer or any of its Subsidiaries a Restricted Subsidiary of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness an aggregate amount incurred and outstanding at any time pursuant to the immediately preceding paragraph or pursuant to this clause (b), (c) or (giv) of this paragraph up to $10 million;
("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (fv) the incurrence by the Company Issuer or any Restricted Subsidiary of Indebtedness pursuant to one or more Permitted Credit Facilities in an aggregate amount incurred and outstanding at any time pursuant to this clause (v) of up to $25.0 million;
(vi) the incurrence (including in connection with an Asset Acquisition) by the Issuer or any Restricted Subsidiary of Indebtedness (including Capital Lease Obligations) to the extent the proceeds thereof are or were used to finance the acquisition of computer, communications, routers, servers, switches and related installation and/or maintenance agreements, if any, to be used in connection with the performance of netsourcing services to customers of the Issuer or any Subsidiary pursuant to one or more Customer Contracts; provided that (1) such equipment is acquired for customer-specific purposes (whether one or multiple customers) related to existing Customer Contracts and (2) the aggregate principal amount at the time of incurrence of any Indebtedness used to finance the acquisition of any such assets shall not exceed one-third of the aggregate dollar backlog (i.e., the cumulative total payments provided for under --- applicable Customer Contracts over the life of such contracts without any discount for time value or a reserve of any kind) of all customers for whom such assets are to be used under the related Customer Contracts (provided that only three years of backlog under any one Customer Contract may be taken account of in calculating availability under this clause (vi));
(vii) the incurrence by the Issuer or any Restricted Subsidiary of Purchase Money Indebtedness (including Indebtedness incurred, acquired or assumed in connection with an Asset Acquisition), equipment financing, vendor financing or Capital Lease Obligations, including under a Permitted Credit Facility; provided that in each case, such Indebtedness shall not constitute more than 100% of the cost (determined in accordance with GAAP in good faith by the Board of Directors of the Issuer, but excluding goodwill in the case of an Asset Acquisition) to the Issuer or a Restricted Subsidiary, as applicable, of the property so purchased, developed, acquired, constructed, improved or leased together with services provided in connection therewith; provided that the sum of the aggregate principal amount of Indebtedness incurred and outstanding under this clause (vii) and clause (v) above will not exceed at any time $45.0 million;
(viii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Hedging Obligations to protect that are incurred for the Company against purpose of fixing or hedging interest or foreign currency exchange rate risk with respect to variable any floating rate Indebtedness or foreign currency based Indebtedness, respectively, that is permitted to be incurred by this Indenture, outstanding; provided that the notional amount of any such Hedging Obligation does not exceed the amount of Indebtedness or other liability to which such Hedging Obligation relates;
(g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (jix) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date of this Indenture and (k) the incurrence by the Company Issuer and its Restricted Subsidiaries may incur Indebtedness solely in respect of Hedging Obligations with respect to long-term Indebtedness bankers acceptances, letters of an Accounts Receivable Subsidiary.credit and performance bonds, all in the ordinary course of business; and
Appears in 1 contract
Samples: Purchase Agreement (Intira Corp)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company OI Group shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, (collectively, “incur”) with respect to (collectively, "INCUR") any Indebtedness (including Acquired Debt), and the Company OI Group shall not issue any Disqualified Stock and OI Group shall not permit any of its Restricted Subsidiaries to issue any shares of Disqualified Stock or preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company OI Group and any of its Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) and may issue preferred stock, if (i) the Fixed Charge Coverage Ratio for the Company's OI Group’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 would have been at least (a) 2.25 2.00 to 11.00, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 at the beginning of such four-quarter period and (ii) such Indebtedness is pari passu with or subordinated in right period. The first paragraph of payment to this Section 4.13 shall not prohibit the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity incurrence of any of the Notes. The foregoing limitations will not apply to following items of Indebtedness (acollectively, “Permitted Debt”):
(1) the incurrence by the Company OI Group or any of its Restricted Subsidiaries of revolving credit Indebtedness under Credit Facilities (and letters the incurrence of credit, and any extension, refinancing, renewal, replacement or refunding Guarantees thereof, ) in an aggregate principal amount at any one time outstanding (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 $25 million, less the amount 4.5 billion (of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds which not more than $2.75 billion of such Indebtedness shall be incurred by Restricted Subsidiaries that are not used for acquisitions or other expenditures not in the ordinary course of business, Guarantors);
(b2) the incurrence by the Company or OI Group and any Restricted Subsidiary of its Subsidiaries OI Group of the Existing Indebtedness, ;
(c3) the incurrence by OI Group, the Company and its Subsidiaries the Guarantors of Indebtedness represented by the Notes and the Senior Notes, related Guarantees to be issued on the Issue Date;
(d4) the incurrence by the Company OI Group or any of its Restricted Subsidiaries of Indebtedness issued represented by Capital Lease Obligations, in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (4), not to exceed 3.0% of Tangible Assets;
(5) the incurrence by OI Group or any of its Restricted Subsidiaries of Indebtedness incurred to finance all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of OI Group or such Restricted Subsidiary, in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (5), not to exceed 5.0% of Tangible Assets, as measured after giving effect to such transaction;
(6) provided that so long as no Default shall have occurred or be continuing or would be caused thereby, the incurrence by OI Group or any of its Restricted Subsidiaries of Indebtedness in exchange for, or the proceeds of which are or shall be used to extendrefund, refinancerefinance or replace the OI Inc. Senior Notes;
(7) the incurrence by OI Group or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, renewor the net proceeds of which are or shall be used to refund, replacerefinance or replace Indebtedness (other than Intercompany Indebtedness) that was permitted to be incurred under the first paragraph of this Section 4.13 or clauses (2), refund (3), (6) or defease(7) of this paragraph;
(8) the incurrence by OI Group or any of its Restricted Subsidiaries of Intercompany Indebtedness between or among OI Group and any of its Restricted Subsidiaries and with respect to OI Group only, between OI Group and OI Inc.; provided, however, that:
(a) if OI Group, the Company or any Guarantor is the obligor on such Indebtedness, 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 Guarantees of the Notes, in the case of OI Group or a Guarantor;
(b) any incurrence by OI Group of Intercompany Indebtedness to OI Inc. after the Issue Date shall be in exchange for cash loans or advances from OI Inc. in the ordinary course of business consistent with past practices; and
(c) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than OI Group or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either OI Group or a Restricted Subsidiary thereof, shall be deemed, in each case, to constitute an incurrence of such Indebtedness by OI Group or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (8);
(9) the incurrence by OI Group or any of its Restricted Subsidiaries of Hedging Obligations;
(10) provided that so long as no Default shall have occurred or be continuing or would be caused thereby, the incurrence by any Foreign Subsidiary of OI Group other than the Company of Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, not to exceed $300.0 million, in addition to the $2.75 billion of Indebtedness that may be incurred under clause (1) of this paragraph;
(11) (i) the Guarantee by the Company or any of the Guarantors of Indebtedness of OI Group or any Restricted Subsidiary of OI Group and (ii) the Guarantee by any Foreign Subsidiary other than the Company of Indebtedness of OI Group or any Restricted Subsidiary of OI Group, in each case, that was permitted to be incurred by another provision of this Section 4.13;
(12) the accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock shall not be deemed to be an incurrence of Indebtedness for purposes of this Section 4.13 or an issuance of Disqualified Stock; provided, in each such case, that the amount thereof is included in Fixed Charges of OI Group as accrued;
(13) the incurrence by OI Group or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to this clause (b13), not to exceed $300.0 million;
(c14) Indebtedness arising from agreements of OI Group or (g) a Restricted Subsidiary of this paragraph ("REFINANCING INDEBTEDNESS")OI Group 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; PROVIDEDprovided, HOWEVERhowever, that (1i) such Indebtedness is not reflected on the balance sheet of OI Group or any such Restricted Subsidiary of OI Group (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 (i)) and (ii) the maximum assumable liability in respect of all such Indebtedness that is permitted to be incurred pursuant to this clause (14) shall at no time exceed the gross proceeds including noncash proceeds (the Fair Market Value of such noncash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by OI Group and its Restricted Subsidiaries in connection with such disposition;
(15) the incurrence by OI Group or any of its Restricted Subsidiaries of Indebtedness incurred or deemed incurred or cash consideration received from the sale of accounts receivable by OI Group or any of its Restricted Subsidiaries or a special purpose vehicle established by any of them to purchase and sell such receivables;
(16) obligations in respect of performance and surety bonds and completion guarantees provided by OI Group or any of its Restricted Subsidiaries in the ordinary course of business;
(17) Indebtedness incurred by OI Group or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including without limitation letters of credit in respect of workers’ compensation claims, or 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; and
(18) the incurrence by OI Group or any of its Restricted Subsidiaries of Acquired Debt, in an aggregate principal amount of such at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (18), not to exceed 5.0% of Tangible Assets, as measured after giving effect to the transaction for which the Acquired Debt was incurred. The Company shall not exceed incur any Indebtedness (including Permitted Debt) after the principal amount Issue Date that is contractually subordinated in right of payment to any other Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Company unless such Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be is also contractually subordinated in right of payment to the Notes on terms at least substantially similar terms; provided, however, that no Indebtedness of the Company shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company solely by virtue of being unsecured. OI Group shall not, and shall not permit any Guarantor to, incur any Indebtedness (including Permitted Debt) after the Issue Date that is contractually subordinated in right of payment to any other Indebtedness of OI Group or the Guarantors, as favorable the case may be, unless such Indebtedness is also contractually subordinated in right of payment to the Holders obligations under the Notes or Guarantees of the Notes as those contained on substantially similar terms; provided, however, that no Indebtedness of OI Group or the Guarantors shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of OI Group or the Guarantors solely by virtue of being unsecured. For purposes of determining compliance with this Section 4.13, in the documentation governing event that any proposed Indebtedness meets the Indebtedness being extendedcriteria of more than one of the categories of Permitted Debt described in clauses (1) through (18) above, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (f) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted is entitled to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect first paragraph of this Section 4.13, the Company shall be permitted to classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Indenture and Section 4.13, or later reclassify all or a portion of such item of Indebtedness. Indebtedness under Credit Facilities outstanding on the Issue Date shall be deemed to have been incurred on such date in reliance on the exception provided by clauses (k1) or (2) of the incurrence by the Company and its Subsidiaries definition of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable SubsidiaryPermitted Debt above.
Appears in 1 contract
Samples: Indenture (Owens Illinois Group Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty Guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCUR"“incur”; with “incurrence” having a correlative meaning) any Indebtedness (including Acquired Debt), and the Company shall will not issue any Disqualified Stock and shall will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) and issue Disqualified Stock, and its Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) and issue preferred stock, 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, would have been at least (a) 2.25 2.0 to 11.0, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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, at the beginning of such four-quarter period and period.
(iib) such Indebtedness is pari passu with or subordinated in right The provisions of payment to Section 4.09(a) hereof will not prohibit the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity incurrence of any of the Notes. The foregoing limitations will not apply to following items of Indebtedness or issuances of Disqualified Stock or preferred stock, as applicable (acollectively, “Permitted Debt”):
(1) the incurrence by the Company or any of its Restricted Subsidiaries of revolving credit additional Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, credit under Credit Facilities 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 the greater of (a) $25 million, less 2.2 billion and (b) $700.0 million plus 35.0% of the amount Total Assets of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds Company determined on the date of such incurrence;
(2) the incurrence by the Company or its Restricted Subsidiaries of Existing Indebtedness;
(3) the incurrence by the Issuers and the Guarantors of Indebtedness are not used for acquisitions or other expenditures not in represented by (a) the ordinary course of business, Notes and the related Note Guarantees to be issued on the Issue Date and (b) the Exchange Notes and the related Note Guarantees to be issued pursuant to the Registration Rights Agreement;
(4) the incurrence by the Company or any of its Subsidiaries of the Existing Indebtedness, (c) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the Notes purpose of financing all or any part of the purchase price or cost of design, construction, installation 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 extend, renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (4) at any time; provided that, immediately after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (4) and then outstanding does not exceed the Senior Notes, greater of (da) $75.0 million and (b) 3.25% of the Total Assets of the Company;
(5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to extend, renew, refund, refinance, renew, replace, refund or defease, discharge or otherwise retire for value, any Indebtedness (other than intercompany Indebtedness) or Disqualified Stock of the Company, or Indebtedness (other than intercompany Indebtedness) or preferred stock of any Restricted Subsidiary, in each case that was permitted by this Indenture to be incurred pursuant to the immediately preceding paragraph under Section 4.09(a) hereof or pursuant to clause (b2), (c3), (4), (13), (14) or (g15) of this paragraph Section 4.09(b) or this clause ("REFINANCING INDEBTEDNESS"5); PROVIDED, HOWEVER, that ;
(16) the principal amount incurrence by the Company or any of such Refinancing Indebtedness shall not exceed the principal amount its Restricted Subsidiaries of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries; provided, however, that:
(A) if the Company or any Guarantor is the obligor on such Indebtedness and the payee is not the Company or a Guarantor, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor; 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 and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary, will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (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 are results in any such preferred stock being held by a Person other than the Company or a Restricted Subsidiary; and
(B) any sale or other transfer of any such preferred stock to a Person that is neither the Company nor a Restricted Subsidiary, will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary Guarantorsthat was 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 by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary to the extent that the guaranteed Indebtedness was permitted to be incurred by another provision of this Section 4.09; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the Guarantee must be subordinated or pari passu, as applicable, to the same extent as the Indebtedness Guaranteed;
(f10) the incurrence by the Company or any Restricted Subsidiary of Hedging Obligations to protect Indebtedness consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company against interest rate risk and its Restricted Subsidiaries;
(11) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to variable rate letters of credit; provided that, upon the drawing of such letters of credit, such obligations are reimbursed within 30 days following such drawing;
(12) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness permitted of any Unrestricted Subsidiary or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner or member of, or owner of an Equity Interest in, such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness; provided that, immediately after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (12) and then outstanding does not exceed $25.0 million;
(13) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Acquisition Indebtedness;
(14) the incurrence by any Foreign Subsidiary of Indebtedness that, in the aggregate together with all other Indebtedness of all Foreign Subsidiaries (including all Permitted Refinancing Indebtedness incurred to extend, renew, refund, refinance, replace, defease, discharge or otherwise retire for value any Indebtedness incurred pursuant to this clause (14)), does not exceed $50.0 million; and
(15) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness and the issuance by the Company of any Disqualified Stock, provided that, immediately after giving effect to any such incurrence or issuance, the amount of all such Indebtedness and Disqualified Stock incurred or issued pursuant to this clause (15) and then outstanding (including all Indebtedness and Disqualified Stock incurred or issued to Refinance any Indebtedness or Disqualified Stock incurred or issued pursuant to this clause (15)) does not exceed the greater of (a) $75.0 million and (b) 3.25% of the Total Assets of the Company determined on the date of such incurrence.
(c) The Company will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes or the applicable Note Guarantee on substantially identical terms; provided, however, that no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company or any Guarantor solely by virtue of being unsecured or by virtue of being secured on a junior priority basis.
(d) For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (15) of Section 4.09(b) hereof, or is entitled to be incurred pursuant to Section 4.09(a) hereof, the Company will be permitted in its sole discretion to divide, redivide, classify or reclassify such item of Indebtedness on the date of its incurrence, and later divide, redivide, classify or reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.09. Indebtedness under Credit Facilities outstanding on the date on which Notes are first issued and authenticated under this Indenture will initially be deemed to have been incurred on such date in reliance on the exception provided by this Indentureclause (1) of the definition of Permitted Debt. The accrual of interest or preferred stock dividends, (g) the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of any obligation of the Company or any Restricted Subsidiary as Indebtedness due to a change in accounting principles, and the payment of dividends on preferred stock or Disqualified Stock in the form of additional shares of the same class of preferred stock or Disqualified Stock will not be deemed to be an aggregate principal incurrence of Indebtedness or an issuance of preferred stock or Disqualified Stock for purposes of this Section 4.09; provided that, in each such case, the amount not thereof is included in Fixed Charges of the Company as accrued to exceed $10 million at the extent required by the definition of such term.
(e) For purposes of determining compliance with any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness pursuant denominated in a foreign currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the Registration Rights Agreement as applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. Notwithstanding any other provision of this Indenture and (k) Section 4.09, the incurrence by maximum amount of Indebtedness that the Company and its Subsidiaries or any Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of Hedging Obligations with respect fluctuations in exchange rates or currency values. The principal amount of any Permitted Refinancing Indebtedness incurred to long-term refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Permitted Refinancing Indebtedness is denominated that is in effect on the date of an Accounts Receivable Subsidiarysuch refinancing.
Appears in 1 contract
Samples: Indenture (NGL Energy Partners LP)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable with respect to (collectively, "INCUR"“incur”) any Indebtedness (including Acquired Debt), ) and the Company shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness and may permit a Restricted Subsidiary to incur Indebtedness if (i) 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 would have been at least (a) 2.25 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 at the beginning time of such four-quarter period incurrence and (ii) such Indebtedness is pari passu with or subordinated in right of payment after giving effect thereto the Leverage Ratio would be less than 6.5 to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity of the Notes1.0. The foregoing limitations will shall not apply to to:
(a1) the incurrence by the Company or any Restricted Subsidiary of its Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, Senior Bank Debt in an aggregate principal amount not to exceed $100.0 million at any one time outstanding not to exceed $25 million, less the amount of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, outstanding;
(b2) the incurrence issuance by the Company of the Company Guarantee or any of its by the Restricted Subsidiaries of Subsidiary Guarantees of the Existing Indebtedness, Notes;
(c3) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness represented the Existing Indebtedness;
(4) the issuance by the Notes and Issuer of the Senior Notes, ;
(d5) the incurrence by the Company or any of and its Restricted Subsidiaries of Capital Lease Obligations and/or additional Indebtedness constituting purchase money obligations up to an aggregate of $5.0 million at any one time outstanding, provided that the Liens securing such Indebtedness constitute Permitted Liens;
(6) the incurrence of Indebtedness between (i) the Company and its Restricted Subsidiaries and (ii) the Restricted Subsidiaries;
(7) 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 of the Indenture to be outstanding;
(8) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness arising out of letters of credit, performance bonds, surety bonds and bankers’ acceptances incurred in the ordinary course of business up to an aggregate of $5.0 million at any one time outstanding;
(9) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness consisting of guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock; and
(10) the incurrence by the Company and its Restricted Subsidiaries of Refinancing Indebtedness issued in exchange for, or the proceeds of which are used to repay, redeem, defease, extend, refinance, renew, replace, refund replace or defeaserefund, Indebtedness referred to in clauses (2) through (5) above, and this clause (10) or that was otherwise permitted to be incurred pursuant to the immediately preceding test set forth in the first paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (f) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable SubsidiarySection 4.9.
Appears in 1 contract
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), ) and the Company shall will not issue any Disqualified Stock and shall will not permit any of its Subsidiaries to issue any shares of preferred stock; PROVIDEDprovided, HOWEVERhowever, that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock and the Guarantors may incur Indebtedness or issue shares of preferred stock if (i) 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 preferred stock is issued would have been at least (a) 2.25 2.0 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period and (ii) such Indebtedness is pari passu with or subordinated in right of payment to the Notes and has a Weighted Average Life to Maturity that is greater than the remaining Weighted Average Life to Maturity period. The provisions of the Notes. The foregoing limitations first paragraph of this covenant will not apply to the incurrence of any of the following items of Indebtedness (acollectively, "Permitted Debt"):
(i) the incurrence by the Company or any (and the guarantee thereof by the Guarantors) of its Subsidiaries of revolving credit Indebtedness and letters of credit, and any extension, refinancing, renewal, replacement or refunding thereof, in an under Credit Facilities; provided that the aggregate principal amount at any one time outstanding not of all Indebtedness (with letters of credit being deemed to exceed $25 million, less have a principal amount equal to the amount maximum potential liability of Net Proceeds of Asset Sales that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds of such Indebtedness are not used for acquisitions or other expenditures not in the ordinary course of business, (b) the incurrence by the Company and the Guarantors thereunder) outstanding under all Credit Facilities after giving effect to such incurrence, including all Indebtedness incurred to refund, refinance or replace any of its Subsidiaries of the Existing IndebtednessIndebtedness incurred pursuant to this clause (i), does not exceed an amount equal to $25.0 million;
(cii) the incurrence by the Company and its Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company and the Guarantors of Indebtedness represented by the Notes and the Senior Notes, Note Guarantees;
(div) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in exchange for, each case incurred for the purpose of financing all or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity any part of the Indebtedness being extended, refinanced, renewed, replaced, refunded purchase price or defeased or (y) the remaining Weighted Average Life to Maturity cost of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (f) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, (g) additional Indebtedness in an aggregate principal amount not to exceed $10 million at any one time outstanding, (h) Capital Lease Obligations in an aggregate principal amount not to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness pursuant to the Registration Rights Agreement as in effect on the date of this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable Subsidiary.construction or
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Samples: Indenture (Zilog Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt), and the Company shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; PROVIDED, HOWEVER, that the Company may incur Indebtedness if (i) unless the Fixed Charge Coverage Ratio for the CompanyIssuer'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 preferred stock is issued would have been at least (a) 2.25 1.75 to 1, if such date is prior to August 15, 1995 and (b) 2.50 to 1 thereafter, 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 preferred stock had been issued, as the case may be, at the beginning of such four-quarter period period. The first paragraph of this Section 4.09 shall not prohibit the incurrence of any of the following Indebtedness (collectively, "Permitted Debt"):
(1) the incurrence of Indebtedness (a) under the Credit Agreement (with letters of credit being deemed to have a principal amount equal to the maximum potential liability thereunder) or (b) pursuant to a Qualified Securitization Program; provided that the aggregate amount of all Indebtedness incurred pursuant to this clause (1), including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (1), does not exceed at any one time outstanding an amount equal to $550.0 million, less the aggregate amount applied by the Issuer and its Restricted Subsidiaries to repay Indebtedness under the Credit Agreement or a Qualified Securitization Program pursuant to Section 4.10 hereof;
(2) the incurrence of Existing Indebtedness;
(3) the incurrence of Indebtedness represented by the Notes to be issued on the Closing Date and the Exchange Notes to be issued in respect thereof pursuant to the Registration Rights Agreement;
(4) the incurrence of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the Issuer's business or the business of its Restricted Subsidiaries, in an aggregate amount at any one time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (4), not to exceed the greater of (a) $35.0 million and (iib) 10.0% of the Issuer's Net Tangible Assets as of the date on which any such Indebtedness is pari passu incurred;
(5) the incurrence 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 covenant or clauses (1), (2), (3), (4), (5), (11), (12) or (14) of this paragraph;
(6) the incurrence of Indebtedness among the Issuer and any of its Restricted Subsidiaries, or among any of its Restricted Subsidiaries; provided, however, that: (a) if the Issuer is an obligor with or respect to such Indebtedness, such Indebtedness is expressly subordinated in right of payment to the Notes prior payment in full in cash of all Obligations with respect to the Notes, and has (b) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Weighted Average Life Person other than the Issuer or one of its Restricted Subsidiaries, and any sale or other transfer of any such Indebtedness to Maturity a Person that is greater than not either the remaining Weighted Average Life Issuer or one of its Restricted Subsidiaries, shall, in each case, be deemed to Maturity constitute an incurrence of such Indebtedness by the Issuer or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);
(7) the incurrence 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 of this Indenture to be outstanding;
(8) the guarantee by the Issuer or any of its Restricted Subsidiaries of Indebtedness that was permitted to be incurred by another provision of this Section 4.09;
(9) the accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the Notes. The foregoing limitations will not apply to same class of Disqualified Stock;
(a10) the incurrence by the Company Issuer's Foreign Subsidiaries of Indebtedness in an aggregate amount at any time outstanding not to exceed $35.0 million;
(11) the incurrence by Persons that become Restricted Subsidiaries of Acquired Debt in an aggregate principal amount at the date of such incurrence not to exceed $50.0 million; provided that (a) such Acquired Debt is not incurred in connection with, or in contemplation of, such Person merging with or into the Issuer or any of its other Restricted Subsidiaries and (b) liability for such Acquired Debt shall not extend to the Issuer or any of revolving credit Indebtedness and letters its other Restricted Subsidiaries, or any of credit, and any extension, refinancing, renewal, replacement their assets;
(12) incurrence by the Issuer in respect of industrial revenue bonds or refunding thereof, other similar tax advantageous financings in an aggregate principal amount at any one time outstanding not to exceed $25 50.0 million, less the amount of Net Proceeds of Asset Sales ; provided that have been applied to permanently reduce borrowings and commitments under any such facility, PROVIDED that the proceeds no more than $25.0 million of such Indebtedness are not used for acquisitions shall relate to assets or other expenditures not in the ordinary course of business, (b) the incurrence properties owned by the Company Issuer or any of its Restricted Subsidiaries of on the Existing Indebtedness, Closing Date;
(c13) the incurrence of Indebtedness arising from agreements providing for indemnification, adjustment of purchase price, earn out or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, asset or Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring such business, asset or Subsidiary; provided, however, that the maximum amount of all such Indebtedness shall at no time exceed the gross proceeds actually received by the Company and Issuer or its Restricted Subsidiaries of Indebtedness represented by the Notes and the Senior Notes, in connection with such disposition;
(d14) the incurrence by the Company or any of its Subsidiaries of Indebtedness issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, refund or defease, Indebtedness incurred pursuant to the immediately preceding paragraph or pursuant to clause (b), (c) or (g) of this paragraph ("REFINANCING INDEBTEDNESS"); PROVIDED, HOWEVER, that (1) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of Indebtedness so extended, refinanced, renewed, replaced, substituted, refunded or defeased, (2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to or greater than either (x) the remaining Weighted Average Life to Maturity of the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased or (y) the remaining Weighted Average Life to Maturity of the Notes and (3) if applicable, the Refinancing Indebtedness shall be subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, refunded or defeased (a "PERMITTED REFINANCING"), (e) intercompany Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Subsidiary Guarantors, (f) the incurrence by the Company of Hedging Obligations to protect the Company against interest rate risk with respect to variable rate Indebtedness permitted to be incurred by this Indenture, the Issuer's Subsidiaries in the 2011 Note Indenture as such agreement is in effect on the Closing Date at a time when the fixed charge coverage ratio specified therein had been met or exceeded; and
(g15) the incurrence of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding not to exceed $10 million at any 50.0 million. 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 time outstandingof the categories of Permitted Debt described in clauses (1) through (15) above, (h) Capital Lease Obligations in an aggregate principal amount not or is entitled to exceed $2 million at any one time outstanding, (i) purchase money Indebtedness in an aggregate principal amount not to exceed $2 million at any one time outstanding, (j) the incurrence of Indebtedness be incurred pursuant to the Registration Rights Agreement as in effect first paragraph of this Section 4.09, the Issuer will be permitted to classify such item of Indebtedness on the date of its incurrence in any manner that complies with this Indenture and (k) the incurrence by the Company and its Subsidiaries of Hedging Obligations with respect to long-term Indebtedness of an Accounts Receivable SubsidiarySection 4.09.
Appears in 1 contract
Samples: Indenture (International Specialty Products Inc /New/)
