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") any Indebtedness (including Acquired Debt) and the Company shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness and may permit a Restricted Subsidiary to incur Indebtedness if at the time of such incurrence and after giving effect thereto the Leverage Ratio would be less than 6.5 to 1.0. The foregoing limitations shall not apply to: (1) the incurrence by the Company or any Restricted Subsidiary of Senior Bank Debt in an aggregate amount not to exceed $100.0 million at any one time outstanding; (2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees; (3) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness; (4) the issuance by the Company of the Notes; (5) the incurrence by the Company 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 or refund, Indebtedness referred to in clauses (2) through (5) above, and this clause (10) or that was otherwise permitted to be incurred pursuant to the test set forth in the first paragraph of this Section 4.9.
Appears in 2 contracts
Samples: First Supplemental Indenture (Iron Mountain Inc/Pa), Second Supplemental Indenture (Iron Mountain Inc/Pa)
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 will not issue any Disqualified Stock and will 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 shares of Disqualified Stock and the Company's Restricted Subsidiaries may permit a Restricted Subsidiary to incur Indebtedness if (including Acquired Debt) or issue preferred stock if, in each case, the Company's Debt to Adjusted Consolidated Cash Flow Ratio at the time of incurrence of the Indebtedness or the issuance of the preferred stock, after giving pro forma effect to such incurrence or issuance as of such date and after giving effect thereto to the Leverage Ratio use of proceeds from such incurrence or issuance as if the same had occurred at the beginning of the most recently ended four full fiscal quarter period of the Company for which internal financial statements are available, would be less have been no greater than 6.5 7.5 to 1.01. The foregoing limitations provisions of the first paragraph of this Section 4.09 shall not apply to:prohibit the incurrence of any of the following items of Indebtedness or to the issuance of any of the following items of Disqualified Stock or preferred stock (collectively, "Permitted Debt"):
(1) the incurrence by the Company or any of its Restricted Subsidiary Subsidiaries of Senior Bank Debt Indebtedness under Credit Facilities in an aggregate principal amount not (with letters of credit being deemed to exceed $100.0 million have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) at any one time outstandingoutstanding not to exceed the product of $150,000 times the number of Completed Towers on the date of such incurrence;
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Company of the Indebtedness represented by the 9% Senior Notes and the 10-3/8% Senior Discount Notes, each issued on the date of the Senior Discount Note Indenture;
(4) the issuance by the Company of additional shares of its 12 3/4% Senior Exchangeable Preferred Stock due 2010 solely for the Notespurpose of paying dividends thereon and the incurrence by the Company of Indebtedness represented by the Company's 12 3/4% Senior Subordinated Exchange Debentures due 2010;
(5) the incurrence by the Company and or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations and/or additional Indebtedness constituting Obligations, mortgage financings or purchase money obligations up to an aggregate of $5.0 million at any one time outstandingobligations, 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 in each case incurred for the purpose of fixing financing all or hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms part of the Indenture to be outstanding;
(8) purchase price or cost of construction or improvement of property, plant or equipment used in the incurrence by business of the Company and its or such Restricted Subsidiaries of Indebtedness arising out of letters of creditSubsidiary, performance bonds, surety bonds and bankers' acceptances incurred in the ordinary course of business up to an aggregate of principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (5), not to exceed $5.0 10.0 million at any one time outstanding;
(96) the incurrence by the Company and or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness consisting in exchange for, or the net proceeds of guaranteeswhich are used to extend, indemnities refinance, renew, replace, defease or obligations in respect refund Indebtedness of purchase price adjustments in connection with the acquisition Company or disposition any of assetsits Restricted Subsidiaries or Disqualified Stock of the Company (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under the first paragraph of this Section 4.09 or clauses (2), including(3), without limitation(4), shares (5) or this clause (6) of Capital Stock; andthis paragraph;
(107) the incurrence by the Company and or any of its Restricted Subsidiaries of Refinancing intercompany Indebtedness issued in exchange forbetween or among the Company and any of its Restricted Subsidiaries; provided, or however, that:
(i) if the proceeds of which are used to repayCompany is the obligor on such Indebtedness, redeem, defease, extend, refinance, renew, replace or refund, such Indebtedness referred to in clauses (2) through (5) above, and this clause (10) or that was otherwise permitted to be incurred pursuant is expressly subordinated to the test set forth prior payment in full in cash of all Obligations with respect to the first paragraph Notes of this Section 4.9.such series and that:
(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, and
Appears in 2 contracts
Samples: Indenture (Crown Castle International Corp), Indenture (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, "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; provided, however, that the Company may incur Indebtedness and may permit a Restricted Subsidiary to incur Indebtedness if at the time of such incurrence and after giving effect thereto the Leverage Ratio would be less than 6.5 to 1.0. The foregoing limitations provisions of the first paragraph of this Section 5.09 shall not apply to:prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):
(1) the incurrence by the Company or any Restricted Subsidiary of Senior Bank Debt in an aggregate amount not to exceed $100.0 million at any one time outstanding;
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3i) the incurrence by the Company and its Restricted Subsidiaries of additional Indebtedness and letters of credit under Credit Facilities to procure feedstock, inventory, supplies, consumables and other assets, which would become Collateral, 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 Existing Indebtednessmaximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $5.0 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 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 the covenant described above under Section 5.10;
(4) the issuance by the Company of the Notes;
(5ii) the incurrence by the Company 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 LiensExisting Indebtedness;
(6iii) the incurrence by the Company, and the Guarantee thereof by the Guarantors, of (a) Indebtedness between (i) represented by the Company and its Restricted Subsidiaries Notes on the date of the Indenture, and (iib) Permitted Refinancing Indebtedness in respect of any of the Restricted Subsidiariesforegoing clause (a);
(7iv) 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 Guarantees by the Company and its Restricted Subsidiaries of Permitted Project Debt during the construction, commissioning, start-up, testing, completion and acceptance periods in aggregate principal amount not to exceed the lesser of (i) 80% of the amount equal to $1.50 (or such higher amount as proportionately adjusted by increases in Chemical Engineering’s CE Plant Cost Index from and after the Issue Date) per gallon per year of nameplate biodiesel production capacity with respect to any biodiesel refinery being financed or to be financed with such Permitted Project Debt and (ii) $162.0 million, and Permitted Refinancing Indebtedness arising out in respect thereof;
(v) the incurrence by the Company or any of letters its Restricted Subsidiaries of creditIndebtedness represented by Capital Lease Obligations, performance bondsmortgage financings or purchase money obligations, surety bonds 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 Permitted 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 (iv), not to exceed $5.0 million in the aggregate outstanding at any time outstanding;
(vi) 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 renew, refund, refinance, replace, defease or discharge any Indebtedness (other than Indebtedness owed by one Credit Party to another Credit Party) that was permitted by this Indenture to be incurred pursuant to clauses (i),(ii) or (v) of this paragraph;
(vii) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and bankers' acceptances incurred any of its Restricted Subsidiaries not to exceed $10.0 million in the aggregate at any time outstanding; provided, however, that (a) such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to this Indenture, the Notes and the Note Guarantees, (b) such Indebtedness matures no less than 91 days following the maturity of the Notes and (c)(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 thereof or (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 (vii);
(viii) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness not to exceed in the aggregate at any time outstanding the greater of (a) $10.0 million or (b) the amount equal to 1.5 times Consolidated Cash Flow for the twelve calendar months for with financial statements are available immediate preceding the date of incurrence of such Indebtedness; provided, however, that (a) such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to this Indenture, the Notes and the Note Guarantees, (b) such Indebtedness matures no less than 91 days following the maturity of the Notes;
(ix) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business up to an aggregate of $5.0 million at any one time outstanding(other than for speculative purposes);
(9x) the incurrence by the Company and or any of its Restricted Subsidiaries of Indebtedness consisting of guarantees, indemnities or obligations in respect of purchase price adjustments workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance and surety bonds in connection with the acquisition or disposition ordinary course of assets, including, without limitation, shares of Capital Stockbusiness; and
(10xi) the incurrence by the Company and or any of its Restricted Subsidiaries of Refinancing Indebtedness issued 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. The Company will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in exchange forright 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 Note Guarantees 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, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt set forth above, or the proceeds of which are used to repay, redeem, defease, extend, refinance, renew, replace or refund, Indebtedness referred to in clauses (2) through (5) above, and this clause (10) or that was otherwise permitted is entitled to be incurred pursuant to the test set forth in the first paragraph of this Section 4.9covenant, 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 covenant. Indebtedness under Credit Facilities outstanding on the date on which notes are first issued and authenticated under the 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 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:
(i) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(ii) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(iii) in respect of Indebtedness of another 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 2 contracts
Samples: Indenture (Nova Biosource Fuels, Inc.), Indenture (Nova Biosource Fuels, Inc.)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company and each Restricted Subsidiary shall not, and the Company 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, "INCUR"“incur”) any Indebtedness (including Acquired Debt) and or issue Disqualified Stock, the Company shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock except for preferred stock issued to and held by the Company or any Wholly-Owned Restricted Subsidiary of the Company and each Residual Collateral Trust shall not, and the Company shall not permit any Residual Collateral Trust to issue any shares of preferred stock; provided, however, that the Company or any Subsidiary Guarantor (other than the Residual Collateral Trusts) may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock and any Subsidiary Guarantor (other than the Residual Collateral Trusts) may permit a Restricted Subsidiary to incur Indebtedness if at issue preferred stock if, on the time date of such incurrence or issuance and after giving effect thereto thereto, the Consolidated Leverage Ratio would be less than 6.5 does not exceed 2.0 to 1.0. .
(b) The foregoing limitations shall provisions will not apply to:
(1i) the incurrence by the Company or any Restricted Subsidiary (other than the Residual Collateral Trusts) of Senior Bank Debt 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 used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount not to exceed $100.0 15.0 million at any one time outstandingin the aggregate since the Original Issue Date;
(2ii) the issuance existence of Warehouse Facilities, regardless of amount, and the incurrence of Permitted Warehouse Debt by the Company or any of its Restricted Subsidiaries (other than the Residual Collateral Trusts); provided, however, that to the extent any such Indebtedness of the Company or a Restricted Subsidiary of the Company ceases to constitute Permitted Warehouse Debt, to such extent such Indebtedness shall be deemed to be incurred by the Company or such Restricted Subsidiary of the Company, as the case may be, at such time;
(iii) the incurrence by the Company or any of its Restricted Subsidiaries (other than the Residual Collateral Trusts) of intercompany Indebtedness owing to the Company or any of its Restricted Subsidiaries; provided, however, that any Indebtedness of the Company to any Restricted Subsidiary is permitted by Section 4.07 hereof;
(iv) the incurrence by the Company of Indebtedness represented by the Senior Notes and the incurrence by the Subsidiary Guarantors of the Subsidiary Guarantees;
(3v) Indebtedness of the Company and its Restricted Subsidiaries (other than the Residual Collateral Trusts) outstanding on the Original Issue Date;
(vi) the incurrence by the Company or any of its Restricted Subsidiaries (other than the Residual Collateral Trusts) of Permitted Refinancing Indebtedness with respect to Indebtedness that was permitted by this Indenture to be incurred or that was outstanding at the Original Issue Date;
(vii) the incurrence by the Company or any of its Restricted Subsidiaries (other than the Residual Collateral Trusts) of Hedging Obligations directly related to (w) Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted by this Indenture to be incurred, (x) Receivables held by the Company or a Restricted Subsidiary pending sale in a Securitization, (y) Receivables of the Company or a Restricted Subsidiary that have been sold pursuant to a Warehouse Facility; or (z) Receivables that the Company or a Restricted Subsidiary reasonably expects to purchase or commit to purchase, finance or accept as collateral; provided, however, that, in the case of each of the foregoing clauses (w) through (z), such Hedging Obligations are eligible to receive hedge accounting treatment in accordance with GAAP as applied by the Company and its Restricted Subsidiaries on the Original Issue Date;
(viii) the incurrence of Acquired Debt by the Company or any Subsidiary Guarantor (other than the Residual Collateral Trusts) in a principal amount not to exceed $15.0 million in the aggregate since the Original Issue Date that is without recourse to the Company or any of its Restricted Subsidiaries or any of their respective assets (other than the Subsidiary Guarantor acquired subject to such Acquired Debt), and is not guaranteed by any such Person;
(ix) the Guarantee by the Company or any of the Subsidiary Guarantors (other than the Residual Collateral Trusts) of the Indebtedness of the Company or another Subsidiary Guarantor that was permitted to be incurred by another provision of this Section 4.09;
(x) the incurrence by the Company and its Restricted the Subsidiary Guarantors of Indebtedness (other than the Residual Collateral Trusts) secured by (A) Servicing Receivables (other than those on deposit in the Residual Collateral Trusts), (B) Residual Receivables (other than those on deposit in the Residual Collateral Trusts) or (C) the Capital Stock of Subsidiaries (other than the Residual Collateral Trusts or the other Subsidiary Guarantors) substantially all of the Existing Indebtednessassets of which are Residual Receivables and/or Servicing Receivables;
(4) the issuance by the Company of the Notes;
(5xi) the incurrence by the Company and its Restricted Subsidiaries the Subsidiary Guarantors (other than the Residual Collateral Trusts) of Capital Lease Obligations and/or additional Indebtedness constituting purchase money obligations up to in an aggregate of $5.0 million principal amount at any one time outstanding, provided that the Liens securing such Indebtedness constitute Permitted Liensoutstanding not to exceed $10.0 million;
(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;
(9A) the incurrence by an Unrestricted Subsidiary of 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, Non-Recourse Debt (including, without limitation, shares Non-Recourse Debt that would constitute Permitted Warehouse Debt if incurred by a Restricted Subsidiary of Capital Stockthe Company); provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of the Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary and (B) the issuance by an Unrestricted Subsidiary of the Company of preferred stock; and
(10xiii) the incurrence by Guaranteed Obligations and the Collateral securing the same.
(c) The Company shall not, and shall not permit any Subsidiary Guarantor to, incur any Indebtedness that is contractually subordinated to any Indebtedness of the Company and its Restricted Subsidiaries of Refinancing or any such Subsidiary Guarantor unless such Indebtedness issued in exchange foris also contractually subordinated to the Senior Notes, or the proceeds Subsidiary Guarantee of which are used such Subsidiary Guarantor (as applicable), on substantially identical terms; provided, however, that no Indebtedness shall be deemed to repaybe contractually subordinated to any other Indebtedness solely by virtue of being unsecured or of limited recourse.
(d) For purposes of determining compliance with this covenant, redeem, defease, extend, refinance, renew, replace or refund, in the event that an item of Indebtedness referred to meets the criteria of more than one of the categories of Indebtedness described in clauses (2i) through (5xii) above, and this clause (10of Section 4.09(b) above or that was otherwise permitted is entitled to be incurred pursuant to Section 4.09(a), the test set forth Company shall, in the first paragraph its sole discretion, classify such item of Indebtedness in any manner than complies with this covenant and such item of Indebtedness will be treated as having been incurred pursuant to only one of such clauses or pursuant to Section 4.94.09(a).
Appears in 1 contract
Samples: Indenture (Delta Financial Corp)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company and each Restricted Subsidiary shall not, and the Company 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) or issue Disqualified Stock, and the Company shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stockstock except for preferred stock issued to and held by the Company or any Wholly-Owned Restricted Subsidiary of the Company; provided, however, that the Company or any Subsidiary Guarantor may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock and any Subsidiary Guarantor may permit a Restricted Subsidiary to incur Indebtedness if at issue preferred stock if, on the time date of such incurrence or issuance and after giving effect thereto thereto, the Consolidated Leverage Ratio would be less than 6.5 does not exceed 2.0 to 1.0. .
(b) The foregoing limitations shall provisions will not apply to:
(1i) the incurrence by the Company or any Restricted Subsidiary of Senior Bank Debt 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 used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount not to exceed $100.0 15.0 million at any one time outstandingin the aggregate since the Original Issue Date;
(2ii) the issuance existence of Warehouse Facilities, regardless of amount, and the incurrence of Permitted Warehouse Debt by the Company or any of its Restricted Subsidiaries; provided, however, that to the extent any such Indebtedness of the Company or a Restricted Subsidiary of the Company ceases to constitute Permitted Warehouse Debt, to such extent such Indebtedness shall be deemed to be incurred by the Company or such Restricted Subsidiary of the Company, as the case may be, at such time;
(iii) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to the Company or any of its Restricted Subsidiaries; provided, however, that any Indebtedness of the Company to any Restricted Subsidiary is permitted by Section 4.07 hereof;
(iv) the incurrence by the Company of Indebtedness represented by the Senior Notes and the incurrence by the Subsidiary Guarantors of the Subsidiary Guarantees;
(3v) Indebtedness of the Company and its Restricted Subsidiaries outstanding on the Original Issue Date;
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness with respect to Indebtedness that was permitted by this Indenture to be incurred or that was outstanding at the Original Issue Date;
(vii) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations directly related to (w) Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted by this Indenture to be incurred, (x) Receivables held by the Company or a Restricted Subsidiary pending sale in a Securitization, (y) Receivables of the Company or a Restricted Subsidiary that have been sold pursuant to a Warehouse Facility; or (z) Receivables that the Company or a Restricted Subsidiary reasonably expects to purchase or commit to purchase, finance or accept as collateral; provided, however, that, in the case of each of the foregoing clauses (w) through (z), such Hedging Obligations are eligible to receive hedge accounting treatment in accordance with GAAP as applied by the Company and its Restricted Subsidiaries on the Original Issue Date;
(viii) the incurrence of Acquired Debt by the Company or any Subsidiary Guarantor in a principal amount not to exceed $15.0 million in the aggregate since the Original Issue Date that is without recourse to the Company or any of its Restricted Subsidiaries or any of their respective assets (other than the Subsidiary Guarantor acquired subject to such Acquired Debt), and is not guaranteed by any such Person;
(ix) the Guarantee by the Company or any of the Subsidiary Guarantors of the Indebtedness of the Company or another Subsidiary Guarantor that was permitted to be incurred by another provision of this Section 4.09;
(x) the incurrence by the Company and its Restricted the Subsidiary Guarantors of Indebtedness secured by (A) Servicing Receivables (other than those on deposit in the Residual Collateral Trusts), (B) Residual Receivables (other than those on deposit in the Residual Collateral Trusts) or (C) the Capital Stock of Subsidiaries (other than the Residual Collateral Trusts) substantially all of the Existing Indebtednessassets of which are Residual Receivables and/or Servicing Receivables;
(4) the issuance by the Company of the Notes;
(5xi) the incurrence by the Company and its Restricted Subsidiaries the Subsidiary Guarantors of Capital Lease Obligations and/or additional Indebtedness constituting purchase money obligations up to in an aggregate of $5.0 million principal amount at any one time outstanding, provided that the Liens securing such Indebtedness constitute Permitted Liens;outstanding not to exceed $10.0 million; and
(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;
(9A) the incurrence by an Unrestricted Subsidiary of 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, Non-Recourse Debt (including, without limitation, shares Non-Recourse Debt that would constitute Permitted Warehouse Debt if incurred by a Restricted Subsidiary of Capital Stockthe Company); andprovided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of the Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary and (B) the issuance by an Unrestricted Subsidiary of the Company of preferred stock.
(10c) the incurrence by The Company shall not, and shall not permit any Subsidiary Guarantor to, incur any Indebtedness that is contractually subordinated to any Indebtedness of the Company and its Restricted Subsidiaries of Refinancing or any such Subsidiary Guarantor unless such Indebtedness issued in exchange foris also contractually subordinated to the Senior Notes, or the proceeds Subsidiary Guarantee of which are used such Subsidiary Guarantor (as applicable), on substantially identical terms; provided, however, that no Indebtedness shall be deemed to repaybe contractually subordinated to any other Indebtedness solely by virtue of being unsecured or of limited recourse.
(d) For purposes of determining compliance with this covenant, redeem, defease, extend, refinance, renew, replace or refund, in the event that an item of Indebtedness referred to meets the criteria of more than one of the categories of Indebtedness described in clauses (2i) through (5xii) above, and this clause (10of Section 4.09(b) above or that was otherwise permitted is entitled to be incurred pursuant to Section 4.09(a), the test set forth Company shall, in the first paragraph its sole discretion, classify such item of Indebtedness in any manner than complies with this covenant and such item of Indebtedness will be treated as having been incurred pursuant to only one of such clauses or pursuant to Section 4.94.09(a).
Appears in 1 contract
Samples: Indenture (Delta Financial Corp)
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 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 will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; providedPreferred Stock, however, provided that the Company may Incur Indebtedness or issue shares of Disqualified Stock and its Restricted Subsidiaries may incur Indebtedness and may permit a Restricted Subsidiary to incur Indebtedness or issue Disqualified Stock or Preferred Stock if at the time of such incurrence and after giving effect thereto the Leverage Ratio would be less than 6.5 to 1.0. The foregoing limitations shall not apply toeither:
(1i) the incurrence Company's Consolidated Leverage Ratio is less than ___ to 1; or
(ii) the Consolidated Capital Ratio is ___. Notwithstanding the foregoing, the provisions of the preceding paragraph will not apply to the Incurrence of any of the following items of Indebtedness:
(a) the Incurrence by the Company or Issuer and any Restricted Subsidiary Guarantor of Senior Bank Debt Indebtedness under the Working Capital Facility in an aggregate principal amount not to exceed $100.0 million at any one time outstanding;
outstanding under this clause (2a) (with letters of credit being deemed to have a principal amount equal to the issuance by the Restricted Subsidiaries maximum potential liability of Subsidiary Guarantees;
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtednessthereunder) not to exceed $150,000,000;
(4b) the issuance by the Company of the Notes;
(5) the incurrence by the Company 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 Incurrence by the Company and its Restricted Subsidiaries of Indebtedness arising out in existence on the date 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 outstandingthis Indenture;
(9c) the incurrence Incurrence by the Company Issuer and its Restricted Subsidiaries the Guarantors of Indebtedness consisting represented by the Notes to be issued on the date of guarantees, indemnities or obligations in respect of purchase price adjustments this Indenture and the Note Guarantees 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 or refund, Indebtedness referred to in clauses (2) through (5) above, and this clause (10) or that was otherwise permitted to be incurred pursuant to the test set forth in the first paragraph of this Section 4.9.therewith;
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 and the Guarantors will not issue any Disqualified Stock and the Company will not permit any of its Restricted Subsidiaries (other than the Guarantors) to issue any shares of preferred stock; provided, however, that the Company and any of the Guarantors may incur Indebtedness and (including Acquired Debt) or issue 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 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom) as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may permit a Restricted Subsidiary to incur Indebtedness if be, at the time beginning of such four-quarter period.
(b) The provisions of Section 4.09(a) will not prohibit the incurrence and after giving effect thereto of any of the Leverage Ratio would be less than 6.5 to 1.0. The foregoing limitations shall not apply to:following items of Indebtedness (collectively, “Permitted Debt”):
(1) the incurrence by the Company or any and its Restricted Subsidiary Subsidiaries of Senior Bank Debt (a) Indebtedness, letters of credit and bankers’ acceptances under Credit Facilities in an aggregate amount at any time outstanding as of any date of incurrence of any such Indebtedness (together with the aggregate amount of any Permitted Refinancing Indebtedness outstanding as of such date that was incurred pursuant to clause (1)(b) and that is not deemed to be incurred pursuant to another clause of the definition of Permitted Debt or clause (a) above as a result of reclassification) not to exceed the greater of (x) $100.0 1,250.0 million at and (y) such amount as would not cause the Consolidated Senior Secured Leverage Ratio, calculated as of the date of incurrence, to exceed 3.0 to 1.0 and (b) any one time outstandingPermitted Refinancing Indebtedness incurred to extend, refinance, refund, renew, replace, defease or discharge any Indebtedness that was incurred pursuant to this clause (1) and was not, as of the date of incurrence of such Permitted Refinancing Indebtedness, deemed to be incurred pursuant to another clause of the definition of Permitted Debt or clause (a) above as a result of reclassification;
(2) the issuance incurrence by the Company and its Restricted Subsidiaries of Subsidiary GuaranteesExisting Indebtedness;
(3) the incurrence by the Company and its Restricted Subsidiaries the Guarantors of Indebtedness represented by the Existing IndebtednessNotes and Subsidiary Guarantees to be issued on the Issue Date;
(4) the issuance 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 Notespurchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary (whether through the direct purchase of assets or the Equity Interests of any Person owning such assets), in an aggregate principal amount at any time outstanding, as of the date of incurrence of any Indebtedness pursuant to this clause (4), 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) $300.0 million and (b) 4.0% of Consolidated Total Assets (determined as of the date of incurrence);
(5) the incurrence by the Company and or any of its Restricted Subsidiaries of Capital Lease Obligations and/or additional Permitted Refinancing Indebtedness constituting purchase money obligations up in exchange for, or the net proceeds of which are used to an aggregate of $5.0 million at any one time outstandingrefund, provided that the Liens securing such refinance or replace, Indebtedness constitute Permitted Liensincurred under clauses (2), (3) or (4) above, this clause (5), clauses (17), (18), (20) or (26) below or pursuant to Section 4.09(a);
(6) the incurrence of Indebtedness between (i) by the Company and or any of its Restricted Subsidiaries of Indebtedness owed to the Company or any of its 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 with respect to the Notes, in the case of the Company, or the Subsidiary Guarantee of such Guarantor, in the case of a Guarantor; 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 Restricted Subsidiary thereof and (ii2) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted SubsidiariesSubsidiary 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 (6);
(7) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness under Hedging Obligations that are incurred not entered into 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 outstandingspeculation;
(8) the incurrence issuance by any of the Company’s Restricted Subsidiaries to the Company and or to any of its Restricted Subsidiaries of Indebtedness arising out shares of letters preferred stock; provided, however, that:
(a) any subsequent issuance or transfer of creditEquity 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, performance bondswill be deemed, surety bonds and bankers' acceptances incurred in the ordinary course each case, to constitute an issuance of business up to an aggregate of $5.0 million at any one time outstandingsuch preferred stock by such Restricted Subsidiary that was not permitted by this clause (8);
(9) the incurrence Guarantee by the Company and or any of 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 or a Restricted Subsidiaries Subsidiary 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 referred to in clauses (2) through (5) above, and this clause (10) or Company that was otherwise permitted to be incurred pursuant to the test set forth in the first paragraph by another provision of this Section 4.9.4.09 and could have been incurred (in compliance with this Section 4.09) by the Person so Guaranteeing such Indebtedness;
Appears in 1 contract
Samples: Indenture (Post Holdings, 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, incur, issue, assume, guaranty Guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") ), after the date of issuance of the Notes, any Indebtedness (including Acquired Debt) and the Company shall will not issue any Disqualified Capital Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that . Indebtedness consisting of reimbursement obligations in respect of a letter of credit will be deemed to be incurred when the Company may incur Indebtedness and may permit a Restricted Subsidiary to incur Indebtedness if at the time letter of such incurrence and after giving effect thereto the Leverage Ratio would be less than 6.5 to 1.0credit is first issued. The foregoing limitations shall provisions will not apply to:
(1i) the incurrence by the Company and its Subsidiaries of Indebtedness represented by the Notes;
(ii) the incurrence by the Company or any Restricted Subsidiary of Senior Bank Debt its Subsidiaries of Permitted Refinancing Indebtedness in an aggregate amount not exchange for, or the net proceeds of which are used to exceed $100.0 million at any one time outstandingextend, refinance, renew, replace, defease or refund, in whole or in part, Indebtedness that was permitted by the Indenture to be incurred (including, without limitation, Existing Indebtedness);
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3iii) the incurrence by the Company and or any of its Restricted Subsidiaries or any Affiliate of the Existing IndebtednessCompany or any Subsidiary of intercompany Indebtedness between or among the Company and any of its Subsidiaries or any such Affiliate;
(4) the issuance by the Company of the Notes;
(5iv) the incurrence by the Company and or any of its Restricted Subsidiaries of Indebtedness represented by performance bonds, standby letters of credit or appeal bonds, in each case to the extent incurred in the ordinary course of business of the Company or such Subsidiary;
(v) the incurrence by the Company or any of its Subsidiaries of Indebtedness, which, together with all other Indebtedness outstanding as of the date of such incurrence, does not exceed (x) five and one-half times EBITDA for the last four full fiscal quarters ending immediately preceding such date plus (y) $6.5 million of any Capital Lease Obligations and/or additional Indebtedness constituting purchase money obligations Obligations; and
(vi) the incurrence of (a) up to an aggregate of $70.0 million under the Company's credit facility with BNY Financial Corporation; (b) up to an aggregate of $5.0 million at any one time outstanding, provided that under the Liens securing such Indebtedness constitute Permitted Liens;
Company's mortgage indebtedness to Fleet Bank N.A. (6the "Fleet Loan"); (c) 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 $7.5 million under a short term loan from BNY Financial Corporation; (d) up to an aggregate of $17.5 million under international working capital lines of credit; and (e) up to an aggregate of $15.0 million of borrowings from hardware vendors. Notwithstanding the foregoing, the Company may not use the proceeds from any of the above-referenced items in paragraph (vi) above to make an acquisition of a business having a purchase price in excess of $5.0 million at any one time outstanding;
(9) unless and only to the incurrence by extent that after the use of such proceeds the Company and its Restricted Subsidiaries is able to incur at least $1.00 of additional Indebtedness consisting of guarantees, indemnities or obligations on a pro forma basis under the test described in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock; and
paragraph (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 or refund, Indebtedness referred to in clauses (2) through (5v) above, and this clause (10) or that was otherwise permitted to be incurred pursuant to the test set forth in the first paragraph of this Section 4.9.
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 will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock and its Restricted Subsidiaries may permit a Restricted Subsidiary to incur Indebtedness or issue Disqualified Stock or preferred stock if at either:
(i) the time of such incurrence and after giving effect thereto the Consolidated Leverage Ratio would be is less than 6.5 5.5 to 1.0 (prior to May 15, 2001) or 5.0 to 1.0 (subsequent to May 15, 2001); or
(ii) the Consolidated Capital Ratio is less than 2.5 to 1.0. The foregoing limitations shall Notwithstanding the foregoing, the provisions of the paragraph set forth above will not apply to:to the incurrence of any of the following items of Indebtedness (collectively, "Permitted Indebtedness"):
(1a) The incurrence by the Company of Indebtedness represented by the Notes and the Exchange Notes;
(b) The incurrence by the Company or any Restricted Subsidiary of Senior Bank Debt in an aggregate amount not to exceed $100.0 million at any one time outstanding;
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(4c) the issuance The incurrence of Indebtedness by the Company to any Restricted Subsidiary or Indebtedness of any Restricted Subsidiary to the NotesCompany or any other Restricted Subsidiary (but only for so long as such Indebtedness is held by the Company or such Restricted Subsidiary);
(5d) the The incurrence by the Company and or any of its Restricted Subsidiaries of Capital Lease Obligations and/or additional Indebtedness constituting (other than leases of backhaul services), mortgage financings or purchase money obligations up to 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 of principal amount not to exceed $5.0 25.0 million at any one time outstanding, provided that the Liens securing such Indebtedness constitute Permitted Liens;
(6e) the The incurrence of Indebtedness between (i) by the Company and or any of its Restricted Subsidiaries and (ii) of Indebtedness pursuant to acquisitions of capacity made in the Restricted Subsidiariesordinary course of business;
(7f) 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 or foreign currency exchange rate risk with respect to any floating rate Indebtedness that is permitted by the terms of the this Indenture to be outstanding;
(8) the g) The incurrence by the Company and or any of its Restricted Subsidiaries of Indebtedness arising out of letters a Restricted Subsidiary incurred and outstanding on the date on which such Restricted Subsidiary was acquired by the Company; provided, however, that at the time such Restricted Subsidiary is acquired by the Company (giving effect to such acquisition), the Company would have been able to incur $1.00 of credit, performance bonds, surety bonds and bankers' acceptances incurred in additional Indebtedness pursuant to the ordinary course of business up to an aggregate of $5.0 million at any one time outstandingimmediately preceding paragraph;
(9h) the The incurrence by the Company and or any of 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 Permitted Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to repay, redeem, defease, extend, refinance, renew, replace or refund, refinance or replace Indebtedness referred (other than intercompany Indebtedness) that was permitted by the Indenture to in be incurred pursuant to the immediately preceding paragraph hereof or clauses (2) through a), (5) aboveb), and this clause (10d), (g), (h), (i), (k), (n) or that was (o) of this paragraph;
(i) The incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness not otherwise permitted to be incurred pursuant to this paragraph 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 (i), not to exceed $50.0 million;
(j) The incurrence of Indebtedness by a Receivables Entity in a Qualified Receivables Transaction, provided that the test set forth proceeds thereof are applied in accordance with Section 4.10 hereof;
(k) The incurrence by the Company or any Restricted Subsidiary of Purchase Money Indebtedness, provided that the amount of such Purchase Money Indebtedness does not exceed 100% of the cost of construction, installation, acquisition, lease, development, design, engineering, financing, testing, start-up, upgrade, completion or improvement of assets (together with related costs and expenses) used in the first paragraph business of the Company or such Restricted Subsidiary;
(l) Letters of Credit that are cash collateralized;
(m) Letters of Credit in an aggregate principal amount equal to $200.0 million less the amount of outstanding Indebtedness under clause (n) of this paragraph;
(n) The incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness in an aggregate amount not to exceed $200.0 million at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (n); and
(o) The guarantee by the Company or any Restricted Subsidiary of Indebtedness of the Company or any Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Section 4.94.09. The Company will not, and will not permit any of its Restricted Subsidiaries to, incur any Indebtedness (including Permitted Indebtedness) that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Restricted Subsidiary 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.
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, "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; provided, however, provided that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock and the Company’s Restricted Subsidiaries may permit a Restricted Subsidiary to incur Indebtedness if (including Acquired Debt) or issue preferred stock if, in each case, the Consolidated Indebtedness to Annualized Consolidated Adjusted EBITDA Ratio at the time of incurrence of the Indebtedness or the issuance of the Disqualified Stock or preferred stock, after giving pro forma effect to such incurrence or issuance as of such date and after giving effect thereto to the Leverage Ratio use of proceeds from such incurrence or issuance as if the same had occurred at the beginning of the most recently ended fiscal quarter of the Company for which internal financial statements are available, would be less have been no greater than 6.5 7.0 to 1.01. The foregoing limitations first paragraph of this Section shall not apply to:prohibit the incurrence of any of the following items of Indebtedness or the issuance of any of the following items of Disqualified Stock or preferred stock (collectively, “Permitted Debt”):
(1) the incurrence by the Company or any of its Restricted Subsidiary Subsidiaries of Indebtedness under the Senior Bank Debt Credit Facility 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 $100.0 million at any one time outstanding250 million;
(2) the issuance incurrence by the Company or its Restricted Subsidiaries of Subsidiary Guaranteesthe Existing Indebtedness (other than Indebtedness described in clauses (1) and (3));
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing IndebtednessIndebtedness represented by the Notes to be issued on the Issue Date (other than Additional Notes) and the Exchange Notes issued in exchange therefor;
(4) the issuance incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness since the Issue Date 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 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, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred by the Company and its Restricted Subsidiaries (measured at the time of such incurrence) pursuant to this clause (4), not to exceed the greater of (a) $50 million and (b) 2.0% of Consolidated Net Tangible Assets;
(5) the incurrence by the Company and or any of its Restricted Subsidiaries of Capital Lease Obligations and/or additional Permitted Refinancing Indebtedness constituting purchase money obligations up in exchange for, or the net proceeds of which are used to an aggregate extend, refinance, renew, replace, defease or refund Indebtedness of $5.0 million at the Company or any one time outstandingof its Restricted Subsidiaries or Disqualified Stock of the Company (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under the first paragraph of this Section or clauses (2), provided that the Liens securing such Indebtedness constitute Permitted Liens(3), this clause (5) or clause (9) of this paragraph;
(6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between (i) or among the Company and any of its Restricted Subsidiaries Subsidiaries; provided, however, that 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 that:
(iiA) 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; shall be deemed, in each case, to constitute an incurrence of the Indebtedness by the Company or the Restricted SubsidiariesSubsidiary, as the case may be;
(7) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising under Hedging Obligations, provided that such Hedging Obligations that are were 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 the Indenture to be outstandingor (ii) currency exchange risk, and, in either case, not for speculative purposes;
(8) the incurrence guarantee by the Company and or any of its Restricted Subsidiaries of Indebtedness arising out of letters the Company or a Restricted Subsidiary of credit, performance bonds, surety bonds and bankers' acceptances the Company that was permitted to be incurred in the ordinary course by another provision of business up to an aggregate of $5.0 million at any one time outstandingthis Indenture;
(9) the incurrence of Acquired Debt of (x) the Company or a Restricted Subsidiary incurred to finance an acquisition or (y) Persons that are acquired by the Company and or any Restricted Subsidiary or merged into the Company or a Restricted Subsidiary in accordance with the terms of this Indenture; provided that, in the case of any incurrence pursuant to this clause (9), as a result of such acquisition by the Company or one of its Restricted Subsidiaries Subsidiaries, the Consolidated Indebtedness to Annualized Consolidated Adjusted EBITDA Ratio at the time of incurrence of such Acquired Debt, after giving pro forma effect to such incurrence as if the same had occurred at the beginning of the most recently ended fiscal quarter of the Company for which internal financial statements are available, would have been either (i) no greater than 7.0 to 1 or (ii) less than the Consolidated Indebtedness consisting of guarantees, indemnities or obligations in respect of purchase price adjustments in connection with to Annualized Consolidated Adjusted EBITDA Ratio for the acquisition or disposition of assets, including, same period without limitation, shares of Capital Stock; andgiving pro forma effect to such incurrence;
(10) the incurrence by the Company and or any of its Restricted Subsidiaries of Refinancing any Indebtedness issued in exchange forrespect of (A) performance bonds, bankers’ acceptances, letters of credit, surety or appeal bonds or similar instruments provided by the Company or any Restricted Subsidiary in the ordinary course of business, (B) the financing of insurance premiums in the ordinary course of business or (C) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Company or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement;
(11) the incurrence by the Company or any of its Restricted Subsidiaries of any Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five business days of its incurrence;
(12) the incurrence by the Company or any of its Restricted Subsidiaries of any Indebtedness consisting of indemnification, adjustment of purchase price, earn-out or similar obligations of the Company or any Restricted Subsidiary, in each case incurred in connection with the acquisition or disposition of any assets, business or Person by the Company or any Restricted Subsidiary;
(13) the incurrence by the Company or any of its Restricted Subsidiaries of any Guarantees in the ordinary course of business of the obligations of suppliers, customers, franchisers and licensees;
(14) the incurrence by Foreign Subsidiaries which have been designated Restricted Subsidiaries of additional Indebtedness, the proceeds of which are used for ordinary course business purposes, in an aggregate principal amount, at any time outstanding, not to repayexceed $25 million; and
(15) the incurrence by the Company or any of its Restricted Subsidiaries since the Issue Date of additional Indebtedness and/or the issuance by the Company of Disqualified Stock in an aggregate principal amount, redeemaccreted value or liquidation preference, defeaseas applicable, extendtaken together with all other Indebtedness incurred pursuant to this clause (15), refinanceat any time outstanding, renewnot to exceed $50 million. 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 also contractually subordinated in right of payment to the Notes on substantially identical terms; provided, replace or refundhowever, that no Indebtedness referred 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, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (21) through (515) above, and this clause (10) above or that was otherwise permitted is entitled to be incurred pursuant to the test set forth in the first paragraph of this Section 4.9Section, the Company shall, in its sole discretion, classify (or later reclassify in whole or in part) such item of Indebtedness in any manner that complies with this Section. Accrual of interest, accretion or amortization of original issue discount and the payment of interest in the form of additional Indebtedness shall not be deemed to be an incurrence of Indebtedness for purposes of this Section.
Appears in 1 contract
Samples: Indenture (Sba Communications Corp)
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 will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock and its Restricted Subsidiaries may permit a Restricted Subsidiary to incur Indebtedness or issue Disqualified Stock or preferred stock if at either:
(i) the time of such incurrence and after giving effect thereto the Consolidated Leverage Ratio would be is less than 6.5 5.5 to 1.0 (prior to May 15, 2001) or 5.0 to 1.0 (subsequent to May 15, 2001); or
(ii) the Consolidated Capital Ratio is less than 2.5 to 1.0. The foregoing limitations shall Notwithstanding the foregoing, the provisions of the paragraph set forth above will not apply to:to the incurrence of any of the following items of Indebtedness (collectively, "Permitted Indebtedness"):
(1a) The incurrence by the Company of Indebtedness represented by the Notes and the Exchange Notes;
(b) The incurrence by the Company or any Restricted Subsidiary of Senior Bank Debt in an aggregate amount not to exceed $100.0 million at any one time outstanding;
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(4c) the issuance The incurrence of Indebtedness by the Company to any Restricted Subsidiary or Indebtedness of any Restricted Subsidiary to the NotesCompany or any other Restricted Subsidiary (but only for so long as such Indebtedness is held by the Company or such Restricted Subsidiary);
(5d) the The incurrence by the Company and or any of its Restricted Subsidiaries of Capital Lease Obligations and/or additional Indebtedness constituting (other than leases of backhaul services), mortgage financings or purchase money obligations up to 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 of principal amount not to exceed $5.0 25.0 million at any one time outstanding, provided that the Liens securing such Indebtedness constitute Permitted Liens;
(6e) the The incurrence of Indebtedness between (i) by the Company and or any of its Restricted Subsidiaries and (ii) of Indebtedness pursuant to acquisitions of capacity made in the Restricted Subsidiariesordinary course of business;
(7f) 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 or foreign currency exchange rate risk with respect to any floating rate Indebtedness that is permitted by the terms of the this Indenture to be outstanding;
(8) the g) The incurrence by the Company and or any of its Restricted Subsidiaries of Indebtedness arising out of letters a Restricted Subsidiary incurred and outstanding on the date on which such Restricted Subsidiary was acquired by the Company; provided, however, that at the time such Restricted Subsidiary is acquired by the Company (giving effect to such acquisition), the Company would have been able to incur $1.00 of credit, performance bonds, surety bonds and bankers' acceptances incurred in additional Indebtedness pursuant to the ordinary course of business up to an aggregate of $5.0 million at any one time outstandingimmediately preceding paragraph;
(9h) the The incurrence by the Company and or any of 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 Permitted Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to repay, redeem, defease, extend, refinance, renew, replace or refund, refinance or replace Indebtedness referred (other than intercompany Indebtedness) that was permitted by this Indenture to in be incurred pursuant to the immediately preceding paragraph hereof or clauses (2) through a), (5) aboveb), and this clause (10d), (e), (g), (h), (i), (j), (k), (n) or that was (o) of this paragraph;
(i) The incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness not otherwise permitted to be incurred pursuant to this paragraph 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 (i), not to exceed $50.0 million;
(j) The incurrence of Indebtedness by a Receivables Entity in a Qualified Receivables Transaction, provided that the test set forth proceeds thereof are applied in accordance with Section 4.10 hereof;
(k) The incurrence by the Company or any Restricted Subsidiary of Purchase Money Indebtedness, provided that the amount of such Purchase Money Indebtedness does not exceed 100% of the cost of construction, installation, acquisition, lease, development, design, engineering, financing, testing, start-up, upgrade, completion or improvement of assets (together with related costs and expenses) used in the first paragraph business of the Company or such Restricted Subsidiary;
(l) Letters of Credit that are cash collateralized;
(m) Letters of Credit in an aggregate principal amount equal to $200.0 million less the amount of outstanding Indebtedness under clause (n) of this paragraph;
(n) The incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness in an aggregate amount not to exceed $200.0 million at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (n); and
(o) The guarantee by the Company or any Restricted Subsidiary of Indebtedness of the Company or any Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Section 4.94.09. The Company will not, and will not permit any of its Restricted Subsidiaries to, incur any Indebtedness (including Permitted Indebtedness) that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Restricted Subsidiary 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.
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 will not issue any Disqualified Stock and will 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 shares of Disqualified Stock and the Company's Restricted Subsidiaries may permit a Restricted Subsidiary to incur Indebtedness if (including Acquired Debt) or issue preferred stock if, in each case, the Company's Debt to Adjusted Consolidated Cash Flow Ratio at the time of incurrence of the Indebtedness or the issuance of the preferred stock, after giving pro forma effect to such incurrence or issuance as of such date and after giving effect thereto to the Leverage Ratio use of proceeds from such incurrence or issuance as if the same had occurred at the beginning of the most recently ended four full fiscal quarter period of the Company for which internal financial statements are available, would be less have been no greater than 6.5 7.5 to 1.01. The foregoing limitations provisions of the first paragraph of this Section 4.09 shall not apply to:prohibit the incurrence of any of the following items of Indebtedness or to the issuance of any of the following items of Disqualified Stock or preferred stock (collectively, "Permitted Debt"):
(1) the incurrence by the Company or any of its Restricted Subsidiary Subsidiaries of Senior Bank Debt Indebtedness under Credit Facilities in an aggregate principal amount not (with letters of credit being deemed to exceed $100.0 million have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) at any one time outstandingoutstanding not to exceed the product of $150,000 times the number of Completed Towers on the date of such incurrence;
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Company of the Indebtedness represented by the Notes and the Discount Notes, each issued on the date hereof;
(4) the issuance by the Company of additional shares of its 12 3/4% Senior Exchangeable Preferred Stock due 2010 solely for the Notespurpose of paying dividends thereon and the incurrence by the Company of Indebtedness represented by the Company's 12 3/4% Senior Subordinated Exchange Debentures due 2010;
(5) the incurrence by the Company and or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations and/or additional Indebtedness constituting Obligations, mortgage financings or purchase money obligations up to an aggregate of $5.0 million at any one time outstandingobligations, 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 in each case incurred for the purpose of fixing financing all or hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms part of the Indenture to be outstanding;
(8) purchase price or cost of construction or improvement of property, plant or equipment used in the incurrence by business of the Company and its or such Restricted Subsidiaries of Indebtedness arising out of letters of creditSubsidiary, performance bonds, surety bonds and bankers' acceptances incurred in the ordinary course of business up to an aggregate of principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (5), not to exceed $5.0 10.0 million at any one time outstanding;
(96) the incurrence by the Company and or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness consisting in exchange for, or the net proceeds of guaranteeswhich are used to extend, indemnities refinance, renew, replace, defease or obligations in respect refund Indebtedness of purchase price adjustments in connection with the acquisition Company or disposition any of assetsits Restricted Subsidiaries or Disqualified Stock of the Company (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under the first paragraph of this Section 4.09 or clauses (2), including(3), without limitation(4), shares (5) or this clause (6) of Capital Stock; andthis paragraph;
(107) the incurrence by the Company and or any of its Restricted Subsidiaries of Refinancing intercompany Indebtedness issued in exchange forbetween or among the Company and any of its Restricted Subsidiaries; provided, or however, that:
(i) if the proceeds of which are used to repayCompany is the obligor on such Indebtedness, redeem, defease, extend, refinance, renew, replace or refund, such Indebtedness referred to in clauses (2) through (5) above, and this clause (10) or that was otherwise permitted to be incurred pursuant is expressly subordinated to the test set forth prior payment in full in cash of all Obligations with respect to the first paragraph Notes of this Section 4.9.such series and that:
(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, and
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) or issue any shares of Disqualified Stock and the Company shall will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, 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 and the Guarantors may permit a Restricted Subsidiary issue shares of preferred stock if, in each case, the Company's Debt to incur Indebtedness if Cash Flow Ratio at the 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 after giving effect thereto to the Leverage Ratio use of the proceeds therefrom as if the same had occurred at the beginning of the most recently ended four full fiscal quarter period of the Company for which internal financial statements are available, would be less have been no greater than 6.5 (a) 7.0 to 1.0, if such incurrence or issuance is prior to December 31, 1999 or (b) 6.0 to 1.0 thereafter. The foregoing limitations shall provisions of the first paragraph of this covenant will not apply to:to the incurrence of any of the following (collectively, "Permitted Debt"):
(1i) the incurrence by the Company (and the guarantee thereof by Guarantors) of Indebtedness and Letters of Credit under one or any Restricted Subsidiary of Senior Bank Debt more Credit Facilities in an aggregate principal amount at any time outstanding not to exceed $100.0 400.0 million at (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 repayments, optional or mandatory, of the principal of any one time outstandingterm Indebtedness under a Credit Facility that have been made since the date hereof and less the aggregate amount of all commitment reductions of any revolving Indebtedness under a Credit Facility pursuant to clause (i) of the third paragraph of Section 4.10 hereof;
(2ii) the issuance incurrence by the Restricted Subsidiaries Company and the guarantee thereof by the Guarantors of Indebtedness represented by the Notes and the Subsidiary Guarantees;
(3iii) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(4) the issuance by the Company of the Notes;
(5iv) the incurrence by the Company and or its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations and/or additional Indebtedness constituting Obligations, mortgage financings or purchase money obligations up to 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 of amount not to exceed $5.0 million at any one time outstanding, provided that the Liens securing such including all Permitted Refinancing Debt incurred pursuant to clause (v) below to refund, replace or refinance any Indebtedness constitute Permitted Lienspursuant to this clause (iv);
(6v) 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 by the first paragraph of this Section 4.09, or by clauses (ii), (iii), (iv), (v), (vii) or (x) of this paragraph;
(vi) the incurrence of Indebtedness between (i) or among the Company and any of its 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 Restricted Subsidiary, and 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;
(vii) the incurrence by the Company or any of its Restricted Subsidiaries and (ii) the Restricted Subsidiaries;
(7) 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 the this Indenture to be outstanding;
(8) viii) the guarantee by the Company or any of the Guarantors of Indebtedness that was permitted to be incurred by another provision of this Section 4.09;
(ix) the incurrence by the Company and its Restricted Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness arising out ceases to be Non-Recourse Debt of letters an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of credit, performance bonds, surety bonds and bankers' acceptances incurred in Indebtedness by a Restricted Subsidiary of the ordinary course of business up to an aggregate of $5.0 million at any one time outstandingCompany that was not permitted by this clause (ix);
(9x) the issuance of preferred stock by the Company pursuant to the Contemporary Agreement, as in effect on the date of this Indenture; and
(xi) the incurrence by the Company and or any of its Restricted Subsidiaries of additional Indebtedness consisting of guaranteesin an aggregate principal amount at any time outstanding, 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 including all Permitted Refinancing Indebtedness issued in exchange for, or the proceeds of which are used incurred pursuant to repay, redeem, defease, extend, refinance, renew, replace or clause (v) above to refund, refinance or replace any Indebtedness referred incurred pursuant to this clause (xi), not to exceed $10.0 million. For purposes of determining compliance with this covenant, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (2i) through (5xi) above, and this clause (10) above or that was otherwise permitted is entitled to be incurred pursuant to the test set forth in 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 4.94.09 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, the accretion of accreted value, 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.
Appears in 1 contract
Samples: Indenture (SFX Entertainment 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, "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; provided, however, provided that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock and the Company’s Restricted Subsidiaries may permit a Restricted Subsidiary to incur Indebtedness if (including Acquired Debt) or issue preferred stock if, in each case, the Consolidated Indebtedness to Annualized Consolidated Adjusted EBITDA Ratio at the time of incurrence of the Indebtedness or the issuance of the Disqualified Stock or preferred stock, after giving pro forma effect to such incurrence or issuance as of such date and after giving effect thereto to the Leverage Ratio use of proceeds from such incurrence or issuance as if the same had occurred at the beginning of the most recently ended fiscal quarter of the Company for which internal financial statements are available, would be less have been no greater than 6.5 9.5 to 1.01. The foregoing limitations first paragraph of this Section 4.08 shall not apply to:prohibit the incurrence of any of the following items of Indebtedness or the issuance of any of the following items of Disqualified Stock or preferred stock (collectively, “Permitted Debt”):
(1) the incurrence by the Company or any of its Restricted Subsidiary Subsidiaries of Senior Bank Debt Indebtedness under the Revolving Credit Facility 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 time outstanding not to exceed $100.0 million at any one time outstanding275.0 million;
(2) the issuance incurrence by the Company or its Restricted Subsidiaries of Subsidiary Guaranteesthe Existing Indebtedness (other than Indebtedness described in clauses (1) and (4) of this paragraph);
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing IndebtednessIndebtedness represented by the Notes to be issued on the Issue Date (other than Additional Notes) and the Exchange Notes issued in exchange therefor;
(4) the issuance incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness since the Issue Date 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 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, Table of Contents including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred by the Company and its Restricted Subsidiaries (measured at the time of such incurrence) pursuant to this clause (4), not to exceed the greater of (a) $75.0 million and (b) 2.0% of Consolidated Net Tangible Assets;
(5) the incurrence by the Company and or any of its Restricted Subsidiaries of Capital Lease Obligations and/or additional Permitted Refinancing Indebtedness constituting purchase money obligations up in exchange for, or the net proceeds of which are used to an aggregate extend, refinance, renew, replace, defease or refund Indebtedness of $5.0 million at the Company or any one time outstandingof its Restricted Subsidiaries or Disqualified Stock of the Company (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under the first paragraph of this Section 4.08 or clauses (2), provided that the Liens securing such Indebtedness constitute Permitted Liens(3), this clause (5) or clause (9) of this paragraph;
(6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between (i) or among the Company and any of its Restricted Subsidiaries Subsidiaries; provided, however, that 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 that:
(iiA) 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; shall be deemed, in each case, to constitute an incurrence of the Indebtedness by the Company or the Restricted SubsidiariesSubsidiary, as the case may be;
(7) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising under Hedging Obligations, provided that such Hedging Obligations that are were incurred for the purpose of fixing or hedging (i) interest rate risk, (ii) currency exchange risk or (iii) equity rate risk associated with respect to any floating rate Indebtedness that is permitted by the terms of the Indenture to be outstandingCompany’s Class A Common Stock, and, in all cases, not for speculative purposes;
(8) the incurrence guarantee by the Company and or any of its Restricted Subsidiaries of Indebtedness arising out of letters the Company or a Restricted Subsidiary of credit, performance bonds, surety bonds and bankers' acceptances the Company that was permitted to be incurred in the ordinary course by another provision of business up to an aggregate of $5.0 million at any one time outstandingthis Indenture;
(9) the incurrence or assumption of Acquired Debt of (x) the Company or a Restricted Subsidiary incurred to finance an acquisition or (y) Persons that are acquired by the Company or any Restricted Subsidiary or merged into the Company or a Restricted Subsidiary in accordance with the terms of this Indenture; provided that, in the case of any incurrence pursuant to this clause (9), as a result of such acquisition by the Company or one of its Restricted Subsidiaries, the Consolidated Indebtedness to Annualized Consolidated Adjusted EBITDA Ratio at the time of incurrence of such Acquired Debt, after giving pro forma effect to such incurrence as if the same had occurred at the beginning of the most recently ended fiscal quarter of the Company for which internal financial statements are available and (x) removing the financial results that would otherwise be included in such calculations in respect of any Property Disposed of after such date and on or prior to the date of making such acquisition and (y) including the financial results that would otherwise be excluded in such calculations in respect of any Property acquired after such date and on or prior to the date of making such acquisition, would have been either (i) no greater than 9.5 to 1 or (ii) less than the Consolidated Indebtedness to Annualized Consolidated Adjusted EBITDA Ratio for the same period without giving pro forma effect to such incurrence; Table of Contents
(10) Indebtedness owed to credit card companies which are used to pay operating expenses associated with Towers and the Services Business and letters of credit to secure such Indebtedness in each case incurred in the ordinary course of business;
(11) the incurrence by the Company or any of its Restricted Subsidiaries of any Indebtedness in respect of (A) performance bonds, bankers’ acceptances, letters of credit, surety or appeal bonds or similar instruments provided by the Company or any Restricted Subsidiary in the ordinary course of business, (B) the financing of insurance premiums in the ordinary course of business or (C) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Company or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement;
(12) the incurrence by the Company or any of its Restricted Subsidiaries of any Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five business days of its incurrence;
(13) the incurrence by the Company or any of its Restricted Subsidiaries of any Indebtedness consisting of guaranteesindemnification, indemnities or obligations in respect adjustment of purchase price adjustments price, earn-out or similar obligations of the Company or any Restricted Subsidiary, in each case incurred in connection with the acquisition or disposition of any assets, including, without limitation, shares of Capital Stock; andbusiness or Person by the Company or any Restricted Subsidiary;
(1014) the incurrence by the Company and or any of its Restricted Subsidiaries of Refinancing Indebtedness issued any Guarantees in exchange forthe ordinary course of business of the obligations of suppliers, or customers, franchisers and licensees;
(15) the incurrence by Foreign Subsidiaries which have been designated Restricted Subsidiaries of additional Indebtedness, the proceeds of which are used for ordinary course business purposes, in an aggregate principal amount, at any time outstanding, not to repayexceed the greater of (x) $100.0 million and (y) 1.0% of Consolidated Net Tangible Assets;
(16) the incurrence by a joint venture since the issue date of additional Indebtedness or the guarantee by the Company or another Restricted Subsidiary of the Company of the same in an aggregate principal amount, redeem, defease, extend, refinance, renew, replace or refund, taken together with all other Indebtedness referred incurred pursuant to in clauses (2) through (5) above, and this clause (10) or 16), at any time outstanding not to exceed $5.0 million, provided, however, that was otherwise permitted to be such Indebtedness incurred pursuant to this clause (16) shall be subordinated in right of payment to the test set forth Notes; and
(17) the incurrence by the Company or any of its Restricted Subsidiaries since the Issue Date of additional Indebtedness and/or the issuance by the Company of Disqualified Stock in an aggregate principal amount, accreted value or liquidation preference, as applicable, taken together with all other Indebtedness incurred pursuant to this clause (17), at any time outstanding, not to exceed $75.0 million. The Company shall not incur any Indebtedness that is contractually subordinated in right of payment to any other Indebtedness of the first paragraph Company unless such Indebtedness is also contractually subordinated in right of this Section 4.9payment 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.
Appears in 1 contract
Samples: Indenture (Sba Communications Corp)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company Create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and the Borrower shall not, not issue any Disqualified Stock 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") any Indebtedness (including Acquired Debt) and the Company shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock. The first paragraph of this covenant will not prohibit the incurrence of any of the following items of Indebtedness or issuances of Disqualified Stock or preferred stock, as applicable (collectively, “Permitted Debt”):
(i) the incurrence by the Borrower and any Subsidiary of Indebtedness and letters of credit under one or more 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 Borrower and its Subsidiaries thereunder) not to exceed the greater of (a) $100.0 million and (b) 15.0% of the Borrower’s Consolidated Tangible Assets, determined at the time of incurrence;
(ii) Indebtedness outstanding on the Closing Date and listed on Schedule 7.03;
(iii) the incurrence by the Borrower and the Subsidiary Guarantors of Indebtedness represented by the Loans and the related Guarantees under the Loan Documents;
(iv) the incurrence by the Borrower and any of its Subsidiaries (other than Project Finance Subsidiaries) of Indebtedness represented by Capitalized Leases, 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, design, installation or improvement of property, plant or equipment used in the business of the Borrower or such Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed at any time outstanding the greater of (a) $50.0 million and (b) 7.5% of the Borrower’s Consolidated Tangible Assets, determined at the time of incurrence on a pro forma basis to give effect to the assets purchased, constructed, installed or improved;
(v) the incurrence by the Borrower or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance, defease, discharge or replace Indebtedness (other than intercompany Indebtedness) or preferred stock of any Subsidiary, in each case that was permitted to be incurred under clauses (ii), (iii), (iv), (v), (xiii), (xiv), (xviii), or (xx) of this paragraph;
(vi) the incurrence by the Borrower or any of its Subsidiaries (other than an Excluded Subsidiary or a Project Finance Subsidiary) of intercompany Indebtedness between or among the Borrower and any of its Subsidiaries (other than an Excluded Subsidiary or a Project Finance Subsidiary); provided that: (a) if the Borrower or any Subsidiary Guarantor is the obligor on any such Indebtedness that is owing to a 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 Loans, in the case of the Borrower, or the Guarantee pursuant to the Loan Documents, 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 Borrower or a Subsidiary of the Borrower and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Borrower or a Subsidiary of the Borrower will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Borrower or a Subsidiary, as the case may be, that was not permitted by this clause (vi);
(vii) the incurrence by the Borrower or any of its Subsidiaries of Hedging Obligations in the Ordinary Course of Business and not for speculative purposes;
(viii) the Guarantee by the Borrower or any of its Subsidiaries of Indebtedness of the Borrower or any Subsidiary Guarantors that was permitted to be incurred by another provision of this covenant; provided that if the Indebtedness that is being Guaranteed is subordinated in right of payment to the Loans or a Guarantee pursuant to the Loan Documents, then the Guarantee of that Indebtedness by the Borrower or its Subsidiary shall be subordinated in right of payment to the Loans or the Subsidiary Guarantor’s Guarantee pursuant to the Loan Documents, as the case may be;
(ix) the incurrence by the Borrower’s Subsidiaries of Non-Recourse Debt; provided that if any such Indebtedness ceases to be Non-Recourse Debt of such entity, such event will be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Borrower that was not permitted by this clause (ix);
(x) the incurrence by the Borrower or any of its Subsidiaries of Indebtedness in respect of workers’ compensation claims, public liability insurance, unemployment insurance, property, casualty or liability insurance, self-insurance obligations, bankers’ acceptances, or customs, completion, advance payment, performance, bid performance, appeal or surety bonds and other similar obligations in the Ordinary Course of Business, including guarantees or obligations with respect to letters of credit supporting the foregoing;
(xi) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the Ordinary Course of Business; provided that such Indebtedness is extinguished within five Business Days of incurrence;
(xii) Indebtedness represented by agreements of the Borrower or its Subsidiaries providing for indemnification, adjustment of purchase price, earn outs or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or Equity Interests of the Borrower or its 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 Borrower and its Subsidiaries in connection with such disposition;
(xiii) Indebtedness of (x) the Borrower or any Subsidiary incurred to finance an acquisition or (y) a Subsidiary incurred and outstanding on the date on which such Subsidiary was acquired by the Borrower (other than Indebtedness incurred in connection with, or in contemplation of, such acquisition); provided that after giving effect to such acquisition or at the time such Subsidiary is acquired by the Borrower, (A) the Fixed Charge Coverage Ratio for the Borrower’s most recently ended four full fiscal quarters for which financial statements have been delivered pursuant to Section 6.01(a) or (b) immediately preceding the date on which such additional Indebtedness is incurred or such Subsidiary is acquired would have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, as the case may be, at the beginning of such four-quarter period or (B) the Fixed Charge Coverage Ratio of the Borrower would be no less than immediately prior to such acquisition;
(xiv) Indebtedness of Foreign Subsidiaries (other than Project Finance Subsidiaries) in an aggregate amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance or replace any Indebtedness incurred pursuant to this clause (xiv), not to exceed $50 million;
(xv) the issuance by any of the Borrower’s Subsidiaries to the Borrower or to any of its 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 may incur Borrower or a Subsidiary thereof and (b) any sale or other transfer of any such preferred stock to a Person that is not either the Borrower or a Subsidiary thereof, will be deemed, in each case, to constitute an issuance of such preferred stock (as of the date of such sale or transfer) by such Subsidiary that was not permitted by this clause (xv);
(xvi) Indebtedness of the Borrower or any of its Subsidiaries consisting of (a) the financing of insurance premiums or (b) take-or-pay obligations contained in ordinary course supply arrangements;
(xvii) Indebtedness of the Borrower or any of its Subsidiaries in respect of (x) Treasury Management Arrangements and (y) in connection with the Specified Permitted Reorganization;
(xviii) the incurrence by the Borrower or any of its Subsidiaries of additional unsecured Indebtedness or Indebtedness secured on a pari passu or junior basis, in each case, 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 (xviii), in an aggregate principal amount not to exceed at any time outstanding $30.0 million;
(xix) the incurrence by Project Finance Subsidiaries of Project Financings; and
(xx) the incurrence of Indebtedness and may permit a Restricted Subsidiary the issuance of Disqualified Stock or preferred stock, in each case constituting Permitted Ratio Debt and any Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness so incurred, or Disqualified Stock or preferred stock so issued, pursuant to this clause (xx). For purposes of determining compliance with this Section 7.03, if an item of Indebtedness (including Acquired Debt) at any time meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xx) above, the Borrower will be permitted to classify (and later reclassify) in whole or in part, in its sole discretion such item of Indebtedness in any manner that complies with this Section 7.03. Indebtedness under the ABL Credit Agreement or any refinancings or replacements thereof, whether existing on the Closing Date or incurred thereafter, shall be classified under clause (i) of the second paragraph of this Section 7.03. For purposes of determining compliance with this Section 7.03, in connection with any commitment to incur Indebtedness if under this Section 7.03 (including, for the avoidance of doubt, with respect to any commitment to incur Indebtedness under the ABL Credit Agreement), the Borrower or any of its Subsidiaries may, pursuant to a certificate of a Responsible Officer delivered to the Administrative Agent at the time of such incurrence commitment, designate such Indebtedness as having been incurred on the date of such commitment (such date, the “Deemed Date”), and any related borrowing or other extension of credit will be deemed for all purposes under this Agreement to have been incurred on such Deemed Date, including without limitation for purposes of calculating usage of any baskets hereunder (if applicable), the Consolidated Leverage Ratio, Fixed Charge Coverage Ratio and Consolidated Tangible Assets (and all such calculations on the Deemed Date and thereafter shall be made on a pro forma basis after giving effect thereto to the Leverage Ratio would be less than 6.5 to 1.0deemed incurrence and related transactions in connection therewith until such commitment is terminated. The foregoing limitations shall accrual of interest or preferred stock dividends, 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 apply to:
(1) be deemed to be an incurrence of Indebtedness or an issuance of preferred stock or Disqualified Stock for purposes of this covenant; provided, in each such case, that the incurrence by amount thereof is included in Fixed Charges of the Company Borrower as accrued. Further, the reclassification of any lease or other liability of the Borrower or any Restricted Subsidiary of Senior Bank Debt its Subsidiaries as Indebtedness due to a change in accounting principles after the Closing Date will not be deemed to be an aggregate amount not to exceed $100.0 million at incurrence of Indebtedness for purposes of this covenant. For purposes of determining compliance with any one time outstanding;
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(4) the issuance by the Company of the Notes;
(5) the incurrence by the Company 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) U.S. Dollar-denominated restriction on the incurrence of Indebtedness, the U.S. Dollar-equivalent principal amount of Indebtedness between (i) denominated in a foreign currency will be calculated based on the Company 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 the same foreign currency, and its Restricted Subsidiaries and (ii) such refinancing would cause the Restricted Subsidiaries;
(7) Hedging Obligations that are incurred for applicable U.S. Dollar-denominated restriction to be exceeded if calculated at the purpose relevant currency exchange rate in effect on the date of fixing or hedging interest rate risk with respect such refinancing, the U.S. Dollar-denominated restriction will be deemed not to any floating rate Indebtedness that is permitted by have been exceeded so long as the terms principal amount of the Indenture to be outstanding;
(8) refinancing Indebtedness does not exceed the incurrence by principal amount of 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 being refinanced. Notwithstanding 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 or refund, Indebtedness referred to in clauses (2) through (5) above, and this clause (10) or that was otherwise permitted to be incurred pursuant to the test set forth in the first paragraph other provision of this Section 4.97.03, the maximum amount of Indebtedness that the Borrower may incur pursuant to this covenant will not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Parker Drilling Co /De/)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, createIncur any Indebtedness, incur, issue, assume, guaranty or otherwise become directly or indirectly liable with respect to (collectively, "INCUR") any Indebtedness (including Acquired Debt) Indebtedness, or permit any Restricted Subsidiary to Incur Preferred Stock, except that the Company and any Guarantor may Incur Indebtedness, including Acquired Indebtedness, if, at the time of and immediately after giving pro forma effect to the Incurrence thereof and the application of the proceeds therefrom, no Default or Event of Default shall have occurred and be continuing and the Consolidated Leverage Ratio would be greater than zero and less than 3.50 to 1.0.
(b) Notwithstanding Section 3.9(a), the Company shall not permit any of and its Restricted Subsidiaries may Incur Permitted Indebtedness as provided in the definition thereof. For purposes of determining compliance with this Section 3.9, in the event that an item of Indebtedness meets the criteria of more than one of the categories of "Permitted Indebtedness" described in clauses (1) through (16) of the definition thereof, the Company shall, in its sole discretion, classify (or later reclassify) such item of Indebtedness in any manner that complies with this covenant.
(c) For purposes of determining compliance with, and the outstanding principal amount of, any particular Indebtedness Incurred pursuant to and in compliance with this covenant, the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with GAAP. Accrual of interest, the accretion or amortization of original issue discount, the payment of regularly scheduled interest in the form of additional Indebtedness of the same instrument or the payment of regularly scheduled dividends on Disqualified Capital Stock or Preferred Stock in the form of additional Disqualified Capital Stock or Preferred Stock with the same terms will not be deemed to be an Incurrence of Indebtedness or Preferred Stock for purposes of this covenant.
(d) For purposes of determining compliance with any shares U.S. dollar-denominated restriction on the Incurrence of preferred stockIndebtedness where the Indebtedness Incurred is denominated in a different currency, the amount of such Indebtedness will be the U.S. Dollar Equivalent, determined on the date of the Incurrence, of such Indebtedness; provided, however, that the Company may incur Indebtedness and may permit a Restricted Subsidiary to incur Indebtedness if at the time of such incurrence and after giving effect thereto the Leverage Ratio would be less than 6.5 to 1.0. The foregoing limitations shall not apply to:
(1) the incurrence by the Company or any Restricted Subsidiary of Senior Bank Debt in an aggregate amount not to exceed $100.0 million at any one time outstanding;
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(4) the issuance by the Company of the Notes;
(5) the incurrence by the Company 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 denominated in a different currency is subject to a Currency Agreement with respect to U.S. dollars covering all principal, premium, if any, and interest payable on such Indebtedness, the amount of such Indebtedness expressed in U.S. dollars will be as provided in such Currency Agreement. The principal amount of any floating rate Refinancing Indebtedness that is permitted by Incurred in the terms same currency as the Indebtedness being Refinanced will be the U.S. Dollar Equivalent of the Indenture to be outstanding;
(8) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness arising out of letters of creditRefinanced, performance bonds, surety bonds and bankers' acceptances incurred determined 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 accordance with the acquisition or disposition preceding sentence, except to the extent that the principal amount of assets, including, without limitation, shares of Capital Stock; and
(10) the incurrence by the Company and its Restricted Subsidiaries of Refinancing Indebtedness issued exceeds the principal amount of the Indebtedness being Refinanced, in exchange for, or which case the proceeds U.S. Dollar Equivalent of which are used to repay, redeem, defease, extend, refinance, renew, replace or refund, such excess will be determined on the date such Refinancing Indebtedness referred to in clauses (2) through (5) above, and this clause (10) or that was otherwise permitted to be incurred pursuant to the test set forth in the first paragraph of this Section 4.9is Incurred.
Appears in 1 contract
Samples: Indenture (Movie Gallery Inc)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company Company, NE LP and NE LLC shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty or guarantee, otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCURincur") any Indebtedness, other than Permitted Indebtedness, and shall not issue any Disqualified Stock, unless (a) such Indebtedness (including Acquired Debt) will be pari passu with or subordinated to the Note and the Company shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; providedBonds, however, that (b) the Company may incur Indebtedness and may permit a Restricted Subsidiary to incur Indebtedness if at the time proceeds of such incurrence and after giving effect thereto the Leverage Ratio would be less than 6.5 or issuance are used to 1.0. The foregoing limitations shall not apply to:
make equity contributions to either or both of NEA or NJEA, (1c) the proceeds of such incurrence by or issuance are used to finance the Company completion of Required Improvements or any Restricted Subsidiary capital expenditures for the Projects other than Required Improvements, (d) if the proceeds of Senior Bank Debt such Indebtedness are used to finance the completion of Required Improvements (as defined in an aggregate amount not to exceed $100.0 million at any one time outstanding;
(2) the issuance by Project Indenture as in effect on the Restricted Subsidiaries of Subsidiary Guarantees;
(3) the incurrence by the Company and its Restricted Subsidiaries date of the Existing Indebtedness;
(4) the issuance by the Company of the Notes;
(5) the incurrence by the Company 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 outstandingIndenture), provided that the Liens securing such Indebtedness constitute Permitted Liens;
(6) the incurrence of Indebtedness between (i) the Company Projected Debt Service Coverage Ratio (determined on a pro forma basis giving effect to the incurrence and its Restricted Subsidiaries the application of the net proceeds therefrom and the construction of the Required Improvements) measured on each remaining semi-annual payment date in respect of the Bonds is at least 1.2 to 1 and (ii) an independent engineer acceptable to the Restricted Subsidiaries;
Trustee (7) Hedging Obligations that are incurred for which may, absent any conflict or the purpose objection of fixing or hedging interest rate risk the Trustee, be the Independent Engineer with respect to any floating rate Indebtedness the Project Securities) certifies that is permitted by the terms Improvements are Required Improvements (as defined in the Project Indenture as in effect on the date of the Indenture Indenture) and that there will be sufficient funds available to be outstanding;
(8) construct the Required Improvements after 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;
(9e) 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 if the proceeds of which such Indebtedness are used to repayfinance capital expenditures for the Projects other than Required Improvements, redeem, defease, extend, refinance, renew, replace or refund, Indebtedness referred to in clauses (2i) through (5) above, and this clause (10) or that was otherwise permitted to be incurred pursuant to the test set forth in the first paragraph of this Section 4.9.Projected Debt Service Coverage Ratio
Appears in 1 contract
Samples: Indenture (Northeast Energy 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 guarantee or otherwise become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCUR"''incur'') any Indebtedness (including Acquired Debt) and that the Company shall will not issue any Disqualified Stock and will 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 shares of Disqualified Stock and the Company's Restricted Subsidiaries may permit a Restricted Subsidiary to incur Indebtedness if (including Acquired Debt) or issue preferred stock if, in each case, the Company's Debt to Adjusted Consolidated Cash Flow Ratio at the time of incurrence of the Indebtedness or the issuance of the preferred stock, after giving pro forma effect to such incurrence or issuance as of such date and after giving effect thereto to the Leverage Ratio use of proceeds from such incurrence or issuance as if the same had occurred at the beginning of the most recently ended four full fiscal quarter period of the Company for which internal financial statements are available, would be less have been no greater than 6.5 7.5 to 1.01. The foregoing limitations provisions of the first paragraph of this Section 4.09 shall not apply to:prohibit the incurrence of any of the following items of Indebtedness or to the issuance of any of the following items of Disqualified Stock or preferred stock (collectively, ''Permitted Debt''):
(1) the incurrence by the Company or any of its Restricted Subsidiary Subsidiaries of Senior Bank Debt Indebtedness under Credit Facilities in an aggregate principal amount not (with letters of credit being deemed to exceed $100.0 million have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) at any one time outstandingoutstanding not to exceed the product of $150,000 times the number of Completed Towers on the date of such incurrence;
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Company of the Indebtedness represented by the Notes and the Discount Notes, each issued on the date hereof;
(4) the issuance by the Company of additional shares of its 12 3/4% Senior Exchangeable Preferred Stock due 2010 solely for the Notespurpose of paying dividends thereon and the incurrence by the Company of Indebtedness represented by the Company's 12 3/4% Senior Subordinated Exchange Debentures due 2010;
(5) the incurrence by the Company and or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations and/or additional Indebtedness constituting Obligations, mortgage financings or purchase money obligations up to an aggregate of $5.0 million at any one time outstandingobligations, 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 in each case incurred for the purpose of fixing financing all or hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms part of the Indenture to be outstanding;
(8) purchase price or cost of construction or improvement of property, plant or equipment used in the incurrence by business of the Company and its or such Restricted Subsidiaries of Indebtedness arising out of letters of creditSubsidiary, performance bonds, surety bonds and bankers' acceptances incurred in the ordinary course of business up to an aggregate of principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (5), not to exceed $5.0 10.0 million at any one time outstanding;
(96) the incurrence by the Company and or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness consisting in exchange for, or the net proceeds of guaranteeswhich are used to extend, indemnities refinance, renew, replace, defease or obligations in respect refund Indebtedness of purchase price adjustments in connection with the acquisition Company or disposition any of assetsits Restricted Subsidiaries or Disqualified Stock of the Company (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under the first paragraph of this Section 4.09 or clauses (2), including(3), without limitation(4), shares (5) or this clause (6) of Capital Stock; andthis paragraph;
(107) the incurrence by the Company and or any of its Restricted Subsidiaries of Refinancing intercompany Indebtedness issued in exchange forbetween or among the Company and any of its Restricted Subsidiaries; provided, or however, that:
(i) if the proceeds of which are used to repayCompany is the obligor on such Indebtedness, redeem, defease, extend, refinance, renew, replace or refund, such Indebtedness referred to in clauses (2) through (5) above, and this clause (10) or that was otherwise permitted to be incurred pursuant is expressly subordinated to the test set forth prior payment in full in cash of all Obligations with respect to the first paragraph Notes of this Section 4.9.such series and that:
(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, and
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 will not issue any Disqualified Stock and will 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 shares of Disqualified Stock and the Company's Restricted Subsidiaries may permit a Restricted Subsidiary to incur Indebtedness if (including Acquired Debt) or issue preferred stock if, in each case, the Company's Debt to Adjusted Consolidated Cash Flow Ratio at the time of incurrence of the Indebtedness or the issuance of the preferred stock, after giving pro forma effect to such incurrence or issuance as of such date and after giving effect thereto to the Leverage Ratio use of proceeds from such incurrence or issuance as if the same had occurred at the beginning of the most recently ended four full fiscal quarter period of the Company for which internal financial statements are available, would be less have been no greater than 6.5 7.5 to 1.01. The foregoing limitations provisions of the first paragraph of this Section 4.09 shall not apply to:prohibit the incurrence of any of the following items of Indebtedness or to the issuance of any of the following items of Disqualified Stock or preferred stock (collectively, "Permitted Debt"):
(1) the incurrence by the Company or any of its Restricted Subsidiary Subsidiaries of Senior Bank Debt Indebtedness under Credit Facilities in an aggregate principal amount not (with letters of credit being deemed to exceed $100.0 million have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) at any one time outstandingoutstanding not to exceed the product of $150,000 times the number of Completed Towers on the date of such incurrence;
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Company of the Indebtedness represented by the Notes and the Senior Notes, each issued on the date hereof;
(4) the issuance by the Company of additional shares of its 12 3/4% Senior Exchangeable Preferred Stock due 2010 solely for the Notespurpose of paying dividends thereon and the incurrence by the Company of Indebtedness represented by the Company's 12 3/4% Senior Subordinated Exchange Debentures due 2010;
(5) the incurrence by the Company and or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations and/or additional Indebtedness constituting Obligations, mortgage financings or purchase money obligations up to an aggregate of $5.0 million at any one time outstandingobligations, 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 in each case incurred for the purpose of fixing financing all or hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms part of the Indenture to be outstanding;
(8) purchase price or cost of construction or improvement of property, plant or equipment used in the incurrence by business of the Company and its or such Restricted Subsidiaries of Indebtedness arising out of letters of creditSubsidiary, performance bonds, surety bonds and bankers' acceptances incurred in the ordinary course of business up to an aggregate of principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (5), not to exceed $5.0 10.0 million at any one time outstanding;
(96) the incurrence by the Company and or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness consisting in exchange for, or the net proceeds of guaranteeswhich are used to extend, indemnities refinance, renew, replace, defease or obligations in respect refund Indebtedness of purchase price adjustments in connection with the acquisition Company or disposition any of assetsits Restricted Subsidiaries or Disqualified Stock of the Company (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under the first paragraph of this Section 4.09 or clauses (2), including(3), without limitation(4), shares (5) or this clause (6) of Capital Stock; andthis paragraph;
(107) the incurrence by the Company and or any of its Restricted Subsidiaries of Refinancing intercompany Indebtedness issued in exchange forbetween or among the Company and any of its Restricted Subsidiaries; provided, or however, that:
(i) if the proceeds of which are used to repayCompany is the obligor on such Indebtedness, redeem, defease, extend, refinance, renew, replace or refund, such Indebtedness referred to in clauses (2) through (5) above, and this clause (10) or that was otherwise permitted to be incurred pursuant is expressly subordinated to the test set forth prior payment in full in cash of all Obligations with respect to the first paragraph Notes of this Section 4.9.such series and that:
(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, and
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 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 stockPreferred Stock; provided, however, that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock, and the Company's Restricted Subsidiaries may permit a Restricted Subsidiary to incur Indebtedness or issue shares of Preferred Stock, if the Company's Leverage Ratio at the time of incurrence of such Indebtedness or the issuance of such Disqualified Stock or Preferred Stock, after giving pro forma effect to such incurrence and after giving effect thereto or issuance as set forth in the definition of "Leverage Ratio Ratio", would be less have been no greater than 6.5 7.0 to 1.01. The foregoing limitations first paragraph of this Section 4.09 shall not apply to:prohibit the incurrence of any of the following items of Indebtedness, issuances of Preferred Stock, or acquisitions of Indebtedness, Disqualified Stock or Preferred Stock (collectively, "Permitted Debt"):
(1a) the incurrence by the Company or and any of its Restricted Subsidiary Subsidiaries of Senior Bank Debt additional Indebtedness and letters of credit pursuant to Credit Facilities (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) in an aggregate principal amount at any one time outstanding under this clause (a) not to exceed $100.0 million at any one time outstanding275.0 million;
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3b) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(4) the issuance by the Company of the Notes;
(5c) the incurrence by the Company and its Restricted Subsidiaries the Guarantors of Capital Lease Obligations and/or additional Indebtedness constituting purchase money obligations up represented by the Notes to an aggregate be issued on the date of $5.0 million at any one time outstandingthis Indenture and the Exchange Notes to be issued pursuant to the Registration Rights Agreement (including, provided that in each case, the Liens securing such Indebtedness constitute Permitted LiensSubsidiary Guarantees);
(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;
(9d) the incurrence by the Company and or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness consisting in exchange for, or the net proceeds of guaranteeswhich are used to refund, indemnities refinance or obligations in respect replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under the first paragraph of purchase price adjustments in connection with the acquisition this Section 4.09 or disposition clauses (b), (c), (d), (l) or (m) of assets, including, without limitation, shares of Capital Stock; andthis paragraph;
(10e) the incurrence by the Company and or any of its Restricted Subsidiaries of Refinancing intercompany Indebtedness issued between or among the Company and any of its 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 exchange forfull in cash of all Obligations with respect to the Notes, in the case of the Company, or the proceeds of which are used to repaySubsidiary Guarantee, redeem, defease, extend, refinance, renew, replace or refund, Indebtedness referred to in clauses (2) through (5) above, and this clause (10) or that was otherwise permitted to be incurred pursuant to the test set forth in the first paragraph case of this Section 4.9.a Guarantor; 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 thereof and (B) any sale or other transfer of any such Indebtedness to a Person that is not
Appears in 1 contract
Samples: Indenture (Carmike Cinemas 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, "INCUR" or the "INCURRENCE") any Indebtedness (including Acquired Debt) ), and the Company shall will not issue any Disqualified Stock and the Company will not permit any of its Restricted Subsidiaries to issue any shares of Disqualified Stock or preferred stock; providedPROVIDED, howeverHOWEVER, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and a Guarantor may permit a Restricted Subsidiary to incur Indebtedness or issue Disqualified Stock or preferred stock, if the Fixed Charge Coverage Ratio for the Company's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or preferred stock is issued would have been at least 2 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 preferred stock or Disqualified Stock had been issued, as the case may be, at the time beginning of such incurrence and after giving effect thereto the Leverage Ratio would be less than 6.5 to 1.0four-quarter period. The foregoing limitations shall first paragraph of this Section 4.09 will not apply to:prohibit the incurrence of any of the following items of Indebtedness (collectively, "PERMITTED DEBT"):
(1) the incurrence by the Company or and any Restricted Subsidiary Guarantor of Senior Bank Debt revolving credit 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 the Guarantors and the Guarantors thereunder) not to exceed $100.0 200.0 million at LESS the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any one time outstandingGuarantor to repay any revolving credit Indebtedness under a Credit Facility and effect a corresponding commitment reduction thereunder pursuant to Section 4.10;
(2) the issuance incurrence by the Restricted Subsidiaries Company and any Guarantor of Subsidiary Guaranteesthe Existing Indebtedness;
(3) the incurrence by the Company and its Restricted Subsidiaries the Guarantors of Indebtedness represented by the Existing IndebtednessNotes 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;
(4) the issuance incurrence by the Company or any Guarantor 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 Notespurchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Guarantor (including any refinancing thereof), in an aggregate principal amount not to exceed $10.0 million at any time outstanding;
(5) the incurrence by the Company and its Restricted Subsidiaries or any of Capital Lease Obligations and/or additional Guarantor of Permitted Refinancing Indebtedness constituting purchase money obligations up in exchange for, or the net proceeds of which are used to an aggregate refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by the Indenture to be incurred under the first paragraph of $5.0 million at any one time outstandingthis Section 4.09 or clause (2), provided that the Liens securing such Indebtedness constitute Permitted Liens(3) or (5) of this paragraph;
(6) 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 Restricted Subsidiaries; PROVIDED, HOWEVER, that:
(a) 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 results in any such Indebtedness being held by a Person other than the Company and its or a Restricted Subsidiaries 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 SubsidiariesSubsidiary 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 (6);
(7) the incurrence by the Company or any of its Restricted Subsidiaries of:
(a) 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 this Indenture to be outstanding;; and
(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 b) Currency Agreements entered into in the ordinary course of business up in respect of assets or obligations denominated in a foreign currency;
(8) 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 an aggregate be incurred by another provision of $5.0 million at any one time outstandingthis Section 4.09;
(9) the incurrence by accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness of the Company or any Guarantor in the form of additional Indebtedness with the same terms, and its Restricted Subsidiaries 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 consisting or an issuance of guaranteesDisqualified Stock for purposes of this covenant; PROVIDED, indemnities or obligations in respect each such case, that the amount thereof is included in Fixed Charges of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock; andCompany as accrued;
(10) the incurrence by the Company and its Restricted Company's Unrestricted Subsidiaries of Refinancing Non-Recourse Debt, PROVIDED, HOWEVER, that if any such Indebtedness issued in exchange forceases to be Non-Recourse Debt of an Unrestricted Subsidiary, or such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the proceeds of which are used to repay, redeem, defease, extend, refinance, renew, replace or refund, Indebtedness referred to in clauses (2) through (5) above, and Company that was not permitted by this clause (10);
(11) Indebtedness of the Company or any Guarantor 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, HOWEVER, that was otherwise permitted such Indebtedness is extinguished within two business days of incurrence;
(12) Indebtedness of the Company or any Guarantor represented by letters of credit for the account of the Company or such Restricted Subsidiary, as the case may be, in order to provide security for workers' compensation claims, payment obligations in connection with self-insurance or similar requirements in the ordinary course of business; and
(13) the incurrence by the Company or any Guarantor of additional Indebtedness (including any refinancings thereof) in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, not to exceed $25.0 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 of the categories of Permitted Debt described in clauses (1) through (13) above, or is entitled to be incurred pursuant to the test set forth in the first paragraph of this Section 4.94.09, 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.
Appears in 1 contract
Samples: Indenture (Wright Bilt 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, "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; provided, however, provided that the Company and the Guarantors may incur Indebtedness and may permit (including Acquired Debt) or issue shares of Disqualified Stock or preferred stock if the Consolidated Leverage Ratio of the Company, calculated on a Restricted Subsidiary to incur Indebtedness if at the time of such incurrence and pro forma basis after giving effect thereto to the Leverage Ratio incurrence or issuance of the additional Indebtedness to be incurred or the Disqualified Stock or preferred stock to be issued, would be have been less than 6.5 2.0 to 1.01. The foregoing limitations provisions of the first paragraph of this covenant shall not apply to:to the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):
(1i) the existence of Bank Lines and the Guarantees thereof by the Guarantors and the incurrence by the Company and/or any of the Guarantors of revolving credit Indebtedness pursuant to one or more Bank Lines the proceeds of which are applied to purchase or originate Receivables; provided that the aggregate principal amount of all revolving credit Indebtedness outstanding under all Bank Lines after giving effect to such incurrence, including all Permitted Refinancing Indebtedness incurred to refund, refinance, defease, renew or replace any Indebtedness incurred pursuant to this clause (i) and 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, does not at any time exceed the amount of the Borrowing Base (any such outstanding Indebtedness that exceeds the amount of the Borrowing Base as of the close of any Business Day shall cease to be Permitted Debt pursuant to this clause (i) as of the close of business on the third Business Day thereafter and shall be deemed to be an incurrence of such Indebtedness that is not permitted by this clause (i) by the Company or such Guarantor, as applicable, as of such third Business Day);
(ii) the existence of Credit Facilities, regardless of amount, and the incurrence by any Credit Facility Trust of Permitted Credit Facility Debt 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 Credit Facility Trust thereunder) not to exceed 100% of the aggregate principal amount (exclusive of Acquisition Fees included therein) of all Eligible Receivables owned by the Credit Facility Trust (or such Credit Facilities in the case of Permitted Credit Facility Debt in the form of repurchase agreements) at such time;
(iii) the existence of Residual Funding Facilities and the Guarantees thereof by the Guarantors and the incurrence by the Company and/or any of the Guarantors of Indebtedness pursuant to one or more Residual Funding Facilities; provided that the aggregate principal amount of all Indebtedness outstanding under all Residual Funding Facilities after giving effect to such incurrence, permitted under this clause (iii) shall not exceed $125 million; for purposes of determining the principal amount of Residual Funding Facilities and the Guarantees thereof, letters of credit shall be deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder;
(iv) the incurrence by the Securitization Trusts of Permitted Securitization Debt 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 Securitization Trusts thereunder) not to exceed 100% of the aggregate principal amount (exclusive of Acquisition Fees included therein) of the Receivables owned by Securitization Trusts;
(v) the incurrence by the Company of Indebtedness represented by the 2011 Notes, the 2013 Notes, the 2023 Notes and the Notes and the incurrence by the Guarantors of the 2011 Guarantees, the 2013 Guarantees, the 2023 Guarantees and the Subsidiary Guarantees;
(vi) obligations of the Company and its Restricted Subsidiaries and the Securitization Trusts under Credit Enhancement Agreements;
(vii) the incurrence by the Company or any of its Restricted Subsidiary Subsidiaries of Senior Bank Debt Permitted Refinancing Indebtedness in an aggregate amount not exchange for, or the net proceeds of which are used to exceed $100.0 million at refund, refinance, defease, renew or replace any one time outstandingIndebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred;
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3viii) the incurrence by the Company and or any of its Restricted Subsidiaries of the Existing Indebtedness;
(4) the issuance by the Company of the Notes;
(5) the incurrence by intercompany Indebtedness between or among the Company and its Restricted Subsidiaries any 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, the Guarantors; provided that the Liens securing such Indebtedness constitute Permitted Liens;
(6) the incurrence of Indebtedness between (i) if the Company and its Restricted Subsidiaries and (ii) is the Restricted Subsidiaries;
(7) Hedging obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all 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; Notes 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 or refund, Indebtedness referred to in clauses (2) through (5) above, and this clause (10) or that was otherwise permitted to be incurred pursuant to the test set forth in the first paragraph of this Section 4.9.
Appears in 1 contract
Samples: Indenture (Americredit Corp)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company shall Loan Parties 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 be or become directly or indirectly liable liable, contingently or otherwise, with respect to (collectively, "INCUR"“incur”) any Indebtedness (including Acquired Debt) ), and the Company shall Loan Parties will not issue any Disqualified Stock and will not permit any of its their Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness and may permit a Restricted Subsidiary to incur Indebtedness if at the time of such incurrence and after giving effect thereto the Leverage Ratio would be less than 6.5 to 1.0. The foregoing limitations shall not apply to:Disqualified Stock.
(1b) The provisions of Section 4.9(a) hereof will not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):
(i) the incurrence by the Company or Borrower and any Restricted Subsidiary Guarantor of Senior Bank Debt 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 under this clause (i) not to exceed $100.0 million at any one time outstanding;61.0 million.
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3ii) the incurrence by the Company Borrower and its Restricted Subsidiaries of the Existing Indebtedness;
(4) the issuance by the Company of the Notes;
(5iii) the incurrence by the Company Borrower and the Guarantors of Indebtedness represented by the Term Loans and the related Guarantees, as well as any other Indebtedness incurred in accordance with Section 1.12;
(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 within 360 days of the acquisition or completion of construction or installation 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 Borrower or any of its Restricted Subsidiaries, or Attributable Debt relating to a sale and leaseback transaction, 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 $15.0 million at any time outstanding;
(v) the incurrence by the Borrower or any of its Restricted Subsidiaries 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 Agreement to be incurred under clauses (ii), (iii), (iv), (v) or (xv) of this Section 4.9(b);
(vi) 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 or any Guarantor is the obligor on such Indebtedness and the payee is not the Borrower 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 Term Loans, in the case of the Borrower, or the Guaranteed Obligations, in the case of a Guarantor; 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 Borrower or a Restricted Subsidiary of the Borrower and (2) any sale or other transfer of any such Indebtedness to a Person that is not either the Borrower or a Restricted Subsidiary of the Borrower, will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi);
(vii) the issuance by any of the Loan Parties’ Restricted Subsidiaries to the Borrower or to any Guarantor 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 Borrower or a Guarantor; and
(B) any sale or other transfer of any such preferred stock to a Person that is not either the Borrower or a Guarantor, 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 Borrower or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business;
(ix) 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 4.9; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Term Loans, then the Guarantee shall be subordinated or be pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(x) the incurrence by the Borrower or any of 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;
(xi) Indebtedness arising from agreements of the Borrower or a Restricted Subsidiary of the Borrower providing for indemnification, adjustment of purchase price, earn-out 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 Borrower, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition; provided that the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the Borrower and its Restricted Subsidiaries in connection with such disposition;
(xii) Indebtedness of Capital Lease Obligations and/or additional Indebtedness constituting purchase money obligations up to the Borrower’s Foreign Subsidiaries in an aggregate of principal amount not to exceed $5.0 7.5 million at any one time outstanding, provided that the Liens securing such Indebtedness constitute Permitted Liensoutstanding pursuant to this clause (xii);
(6xiii) 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 Borrower or any of its Restricted Subsidiaries of Indebtedness arising out from the honoring by a bank or other financial institution of letters of credita check, performance bondsdraft or similar instrument inadvertently drawn against insufficient funds, surety bonds and bankers' acceptances incurred in the ordinary course of business up to an aggregate of $5.0 million at any one time outstandingso long as such Indebtedness is covered within five Business Days;
(9xiv) the incurrence by the Company and Borrower or any of its Restricted Subsidiaries of Indebtedness consisting of guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the repurchase, redemption or other acquisition or disposition retirement of assetsEquity Interests held by any current or former officer, includingdirector or employee of Holdings, without limitationthe Borrower or any of its Restricted Subsidiaries; provided that such repurchase, shares redemption or other acquisition or retirement is permitted by clause (v) of Capital StockSection 4.7(b); provided, further that such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Term Loans; and
(10xv) the incurrence by the Company and its Restricted Borrower’s Foreign Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness issued in exchange forincurred to renew, or the proceeds of which are used to repay, redeem, defease, extendrefund, refinance, renewreplace, replace defease or refunddischarge any Indebtedness incurred pursuant to this clause (xv), not to exceed $22.0 million. For purposes of determining compliance with this Section 4.9, in the event that an item of proposed Indebtedness referred to meets the criteria of more than one of the categories of Permitted Debt described in clauses (2i) through (5xv) above, and this clause (10) or that was otherwise the Borrower 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 4.9. Indebtedness under Credit Facilities outstanding on the Closing Date will be deemed to have been incurred pursuant to on such date in reliance on the test set forth exception provided by Section 4.9(b)(i) hereof. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the first paragraph 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 4.9; provided, in each such case, that the amount of any such accrual, accretion or payment is included in Fixed Charges of the Borrower as accrued. Notwithstanding any other provision of this Section 4.9, the maximum amount of Indebtedness that the Borrower or any Restricted Subsidiary may incur pursuant to this Section 4.9 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:
(i) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(ii) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(iii) in respect of Indebtedness of another 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. The Loan Parties will not incur, and will not permit their Restricted Subsidiaries to incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Loan Parties or their Restricted Subsidiaries unless such Indebtedness is also contractually subordinated in right of payment to the Term Loans and the Guarantees thereof 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 Loan Parties or their Restricted Subsidiaries solely by virtue of being unsecured or by virtue of the fact that the holders of secured Indebtedness have entered into intercreditor agreements giving one or more of such holders priority over the other holders in the collateral held by them.
Appears in 1 contract
Samples: Second Lien Term Loan Agreement (Stanadyne Holdings, 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, "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; provided, however, provided that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock and the Company’s Restricted Subsidiaries may permit a Restricted Subsidiary to incur Indebtedness if (including Acquired Debt) or issue preferred stock if, in each case, the Consolidated Indebtedness to Annualized Consolidated Adjusted EBITDA Ratio at the time of incurrence of the Indebtedness or the issuance of the Disqualified Stock or preferred stock, after giving pro forma effect to such incurrence or issuance as of such date and after giving effect thereto to the Leverage Ratio use of proceeds from such incurrence or issuance as if the same had occurred at the beginning of the most recently ended fiscal quarter of the Company for which internal financial statements are available, would be less have been no greater than 6.5 7.5 to 1.01. The foregoing limitations first paragraph of this Section shall not apply to:prohibit the incurrence of any of the following items of Indebtedness or the issuance of any of the following items of Disqualified Stock or preferred stock (collectively, “Permitted Debt”):
(1) the incurrence by the Company or any of its Restricted Subsidiary Subsidiaries of Senior Bank Debt Indebtedness under the Revolving Credit Facility 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 $100.0 million at any one time outstanding250 million;
(2) the issuance incurrence by the Company or its Restricted Subsidiaries of Subsidiary Guaranteesthe Existing Indebtedness (other than Indebtedness described in clauses (1) and (3));
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing IndebtednessIndebtedness represented by the Notes to be issued on the Issue Date (other than Additional Notes) and the Exchange Notes issued in exchange therefor;
(4) the issuance incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness since the Issue Date 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 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, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred by the Company and its Restricted Subsidiaries (measured at the time of such incurrence) pursuant to this clause (4), not to exceed the greater of (a) $50 million and (b) 2.0% of Consolidated Net Tangible Assets;
(5) the incurrence by the Company and or any of its Restricted Subsidiaries of Capital Lease Obligations and/or additional Permitted Refinancing Indebtedness constituting purchase money obligations up in exchange for, or the net proceeds of which are used to an aggregate extend, refinance, renew, replace, defease or refund Indebtedness of $5.0 million at the Company or any one time outstandingof its Restricted Subsidiaries or Disqualified Stock of the Company (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under the first paragraph of this Section or clauses (2), provided that the Liens securing such Indebtedness constitute Permitted Liens(3), this clause (5) or clause (9) of this paragraph;
(6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between (i) or among the Company and any of its Restricted Subsidiaries Subsidiaries; provided, however, that 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 that:
(iiA) 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; shall be deemed, in each case, to constitute an incurrence of the Indebtedness by the Company or the Restricted SubsidiariesSubsidiary, as the case may be;
(7) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising under Hedging Obligations, provided that such Hedging Obligations that are were 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 the Indenture to be outstandingor (ii) currency exchange risk, and, in either case, not for speculative purposes;
(8) the incurrence guarantee by the Company and or any of its Restricted Subsidiaries of Indebtedness arising out of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Indenture;
(9) the incurrence or assumption of Acquired Debt of (x) the Company or a Restricted Subsidiary incurred to finance an acquisition or (y) Persons that are acquired by the Company or any Restricted Subsidiary or merged into the Company or a Restricted Subsidiary in accordance with the terms of this Indenture; provided that, in the case of any incurrence pursuant to this clause (9), as a result of such acquisition by the Company or one of its Restricted Subsidiaries, the Consolidated Indebtedness to Annualized Consolidated Adjusted EBITDA Ratio at the time of incurrence of such Acquired Debt, after giving pro forma effect to such incurrence as if the same had occurred at the beginning of the most recently ended fiscal quarter of the Company for which internal financial statements are available and (x) removing the financial results that would otherwise be included in such calculations in respect of any Property Disposed of after such date and on or prior to the date of making such acquisition and (y) including the financial results that would otherwise be excluded in such calculations in respect of any Property acquired after such date and on or prior to the date of making such acquisition, would have been either (i) no greater than 7.5 to 1 or (ii) less than the Consolidated Indebtedness to Annualized Consolidated Adjusted EBITDA Ratio for the same period without giving pro forma effect to such incurrence;
(10) Indebtedness owed to credit card companies which are used to pay operating expenses associated with Towers and the Services Business and letters of credit, performance bonds, surety bonds and bankers' acceptances incurred credit to secure such Indebtedness in the ordinary course of business up to an aggregate of amount not exceeding $5.0 million 500,000 at any one time outstanding;
(911) the incurrence by the Company and or any of its Restricted Subsidiaries of any Indebtedness in respect of (A) performance bonds, bankers’ acceptances, letters of credit, surety or appeal bonds or similar instruments provided by the Company or any Restricted Subsidiary in the ordinary course of business, (B) the financing of insurance premiums in the ordinary course of business or (C) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Company or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement;
(12) the incurrence by the Company or any of its Restricted Subsidiaries of any Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five business days of its incurrence;
(13) the incurrence by the Company or any of its Restricted Subsidiaries of any Indebtedness consisting of guaranteesindemnification, indemnities or obligations in respect adjustment of purchase price adjustments price, earn-out or similar obligations of the Company or any Restricted Subsidiary, in each case incurred in connection with the acquisition or disposition of any assets, including, without limitation, shares of Capital Stock; andbusiness or Person by the Company or any Restricted Subsidiary;
(1014) the incurrence by the Company and or any of its Restricted Subsidiaries of Refinancing Indebtedness issued any Guarantees in exchange forthe ordinary course of business of the obligations of suppliers, or customers, franchisers and licensees;
(15) the incurrence by Foreign Subsidiaries which have been designated Restricted Subsidiaries of additional Indebtedness, the proceeds of which are used for ordinary course business purposes, in an aggregate principal amount, at any time outstanding, not to repayexceed $25 million; and
(16) the incurrence by the Company or any of its Restricted Subsidiaries since the Issue Date of additional Indebtedness and/or the issuance by the Company of Disqualified Stock in an aggregate principal amount, redeemaccreted value or liquidation preference, defeaseas applicable, extendtaken together with all other Indebtedness incurred pursuant to this clause (16), refinanceat any time outstanding, renewnot to exceed $50 million. 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 also contractually subordinated in right of payment to the Notes on substantially identical terms; provided, replace or refundhowever, that no Indebtedness referred 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, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (21) through (516) above, and this clause (10) above or that was otherwise permitted is entitled to be incurred pursuant to the test set forth in the first paragraph of this Section 4.9Section, the Company shall, in its sole discretion, classify (or later reclassify in whole or in part) such item of Indebtedness in any manner that complies with this Section. Accrual of interest, accretion or amortization of original issue discount and the payment of interest in the form of additional Indebtedness shall not be deemed to be an incurrence of Indebtedness for purposes of this Section.
Appears in 1 contract
Samples: Indenture (Sba Communications Corp)
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 or otherwise become directly or indirectly liable with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt) and the Company shall will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness and may permit a Restricted Subsidiary to incur Indebtedness if at the time of such incurrence and after giving effect thereto the Leverage Ratio would be less than 6.5 to 1.0. The foregoing limitations shall will not apply to:
to (1a) the incurrence by the Company or any Restricted Subsidiary of Senior Bank Debt in an aggregate amount not to exceed $100.0 million at any one time outstanding;
, (2b) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
, (3c) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
, (4d) the issuance by the Company of the Notes;
, (5e) the incurrence by the Company and its Restricted Subsidiaries of Capital Lease Obligations and/or additional Indebtedness constituting purchase money obligations up to an aggregate of $5.0 2.5 million at any one time outstanding, provided that the Liens securing such Indebtedness constitute Permitted Liens;
, (6f) the incurrence of Indebtedness between (i) the Company and its Restricted Subsidiaries and (ii) the Restricted Subsidiaries;
, (7g) 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 this Indenture to be outstanding;
, (8) h) 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 2.0 million at any one time outstanding;
, (9i) 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
, and (10j) 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 or refund, Indebtedness referred to in clauses (2b) through (5e) above, and this clause (10) or that was otherwise permitted to be incurred pursuant to the test set forth in the first paragraph of this Section 4.9j).
Appears in 1 contract
Samples: Indenture (Iron Mountain Inc /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 the Company shall will not issue any Disqualified Stock and will 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 shares of Disqualified Stock and the Company's Restricted Subsidiaries may permit a Restricted Subsidiary to incur Indebtedness if (including Acquired Debt) or issue preferred stock if, in each case, the Company's Debt to Adjusted Consolidated Cash Flow Ratio at the time of incurrence of the Indebtedness or the issuance of the preferred stock, after giving pro forma effect to such incurrence or issuance as of such date and after giving effect thereto to the Leverage Ratio use of proceeds from such incurrence or issuance as if the same had occurred at the beginning of the most recently ended four full fiscal quarter period of the Company for which internal financial statements are available, would be less have been no greater than 6.5 7.5 to 1.01. The foregoing limitations provisions of the first paragraph of this Section 4.09 shall not apply to:prohibit the incurrence of any of the following items of Indebtedness or to the issuance of any of the following items of Disqualified Stock or preferred stock (collectively, "Permitted Debt"):
(1) the incurrence by the Company or any of its Restricted Subsidiary Subsidiaries of Indebtedness under Credit Facilities since the date of the August 1999 Senior Bank Debt Note Indenture in an aggregate principal amount not (with letters of credit being deemed to exceed $100.0 million have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) at any one time outstandingoutstanding not to exceed the product of $150,000 times the number of Completed Towers on the date of such incurrence;
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Company of the Indebtedness represented by notes issued on the date of the May 1999 Senior Discount Note Indenture;
(4) the issuance by the Company of additional shares of its 12 3/4% Senior Exchangeable Preferred Stock due 2010 solely for the Notespurpose of paying dividends thereon and the incurrence by the Company of Indebtedness represented by the Company's 12 3/4% Senior Subordinated Exchange Debentures due 2010;
(5) the incurrence by the Company and or any of its Restricted Subsidiaries of Indebtedness since the date of the August 1999 Senior Note Indenture represented by Capital Lease Obligations and/or additional Indebtedness constituting Obligations, mortgage financings or purchase money obligations up to an aggregate of $5.0 million at any one time outstandingobligations, 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 in each case incurred for the purpose of fixing financing all or hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms part of the Indenture to be outstanding;
(8) purchase price or cost of construction or improvement of property, plant or equipment used in the incurrence by business of the Company and its or such Restricted Subsidiaries of Indebtedness arising out of letters of creditSubsidiary, performance bonds, surety bonds and bankers' acceptances incurred in the ordinary course of business up to an aggregate of principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (5), not to exceed $5.0 10.0 million at any one time outstanding;
(96) the incurrence by the Company and or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness consisting in exchange for, or the net proceeds of guaranteeswhich are used to extend, indemnities refinance, renew, replace, defease or obligations in respect refund Indebtedness of purchase price adjustments in connection with the acquisition Company or disposition any of assetsits Restricted Subsidiaries or Disqualified Stock of the Company (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under the first paragraph of this Section 4.09 or clauses (2), including(3), without limitation(4), shares (5) or this clause (6) of Capital Stock; andthis paragraph;
(107) the incurrence by the Company and or any of its Restricted Subsidiaries of Refinancing intercompany Indebtedness issued in exchange forbetween or among the Company and any of its Restricted Subsidiaries; provided, or however, that:
(i) if the proceeds of which are used to repayCompany is the obligor on such Indebtedness, redeem, defease, extend, refinance, renew, replace or refund, such Indebtedness referred to in clauses (2) through (5) above, and this clause (10) or that was otherwise permitted to be incurred pursuant is expressly subordinated to the test set forth prior payment in full in cash of all Obligations with respect to the first paragraph Notes of this Section 4.9.such series and that:
(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, and
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, "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; provided, however, provided that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock and the Company’s Restricted Subsidiaries may permit a Restricted Subsidiary to incur Indebtedness if (including Acquired Debt) or issue preferred stock if, in each case, the Consolidated Indebtedness to Annualized Consolidated Adjusted EBITDA Ratio at the time of incurrence of the Indebtedness or the issuance of the Disqualified Stock or preferred stock, after giving pro forma effect to such incurrence or issuance as of such date and after giving effect thereto to the Leverage Ratio use of proceeds from such incurrence or issuance as if the same had occurred at the beginning of the most recently ended fiscal quarter of the Company for which internal financial statements are available, would be less have been no greater than 6.5 9.5 to 1.01. The foregoing limitations first paragraph of this Section 4.08 shall not apply to:prohibit the incurrence of any of the following items of Indebtedness or the issuance of any of the following items of Disqualified Stock or preferred stock (collectively, “Permitted Debt”):
(1) the incurrence by the Company or any of its Restricted Subsidiary Subsidiaries of Senior Bank Debt Indebtedness under the Revolving Credit Facility 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 time outstanding not to exceed $100.0 million at any one time outstanding275.0 million;
(2) the issuance incurrence by the Company or its Restricted Subsidiaries of Subsidiary Guaranteesthe Existing Indebtedness (other than Indebtedness described in clauses (1) and (4) of this paragraph);
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing IndebtednessIndebtedness represented by the Notes to be issued on the Issue Date (other than Additional Notes) and the Exchange Notes issued in exchange therefor;
(4) the issuance incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness since the Issue Date 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 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, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred by the Company and its Restricted Subsidiaries (measured at the time of such incurrence) pursuant to this clause (4), not to exceed the greater of (a) $75.0 million and (b) 2.0% of Consolidated Net Tangible Assets;
(5) the incurrence by the Company and or any of its Restricted Subsidiaries of Capital Lease Obligations and/or additional Permitted Refinancing Indebtedness constituting purchase money obligations up in exchange for, or the net proceeds of which are used to an aggregate extend, refinance, renew, replace, defease or refund Indebtedness of $5.0 million at the Company or any one time outstandingof its Restricted Subsidiaries or Disqualified Stock of the Company (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under the first paragraph of this Section 4.08 or clauses (2), provided that the Liens securing such Indebtedness constitute Permitted Liens(3), this clause (5) or clause (9) of this paragraph;
(6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between (i) or among the Company and any of its Restricted Subsidiaries Subsidiaries; provided, however, that 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 that:
(iiA) 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; shall be deemed, in each case, to constitute an incurrence of the Indebtedness by the Company or the Restricted SubsidiariesSubsidiary, as the case may be;
(7) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising under Hedging Obligations, provided that such Hedging Obligations that are were incurred for the purpose of fixing or hedging (i) interest rate risk, (ii) currency exchange risk or (iii) equity rate risk associated with respect to any floating rate Indebtedness that is permitted by the terms of the Indenture to be outstandingCompany’s Class A Common Stock, and, in all cases, not for speculative purposes;
(8) the incurrence guarantee by the Company and or any of its Restricted Subsidiaries of Indebtedness arising out of letters the Company or a Restricted Subsidiary of credit, performance bonds, surety bonds and bankers' acceptances the Company that was permitted to be incurred in the ordinary course by another provision of business up to an aggregate of $5.0 million at any one time outstandingthis Indenture;
(9) the incurrence or assumption of Acquired Debt of (x) the Company or a Restricted Subsidiary incurred to finance an acquisition or (y) Persons that are acquired by the Company or any Restricted Subsidiary or merged into the Company or a Restricted Subsidiary in accordance with the terms of this Indenture; provided that, in the case of any incurrence pursuant to this clause (9), as a result of such acquisition by the Company or one of its Restricted Subsidiaries, the Consolidated Indebtedness to Annualized Consolidated Adjusted EBITDA Ratio at the time of incurrence of such Acquired Debt, after giving pro forma effect to such incurrence as if the same had occurred at the beginning of the most recently ended fiscal quarter of the Company for which internal financial statements are available and (x) removing the financial results that would otherwise be included in such calculations in respect of any Property Disposed of after such date and on or prior to the date of making such acquisition and (y) including the financial results that would otherwise be excluded in such calculations in respect of any Property acquired after such date and on or prior to the date of making such acquisition, would have been either (i) no greater than 9.5 to 1 or (ii) less than the Consolidated Indebtedness to Annualized Consolidated Adjusted EBITDA Ratio for the same period without giving pro forma effect to such incurrence;
(10) Indebtedness owed to credit card companies which are used to pay operating expenses associated with Towers and the Services Business and letters of credit to secure such Indebtedness in an aggregate amount not exceeding $1.0 million at any time outstanding;
(11) the incurrence by the Company or any of its Restricted Subsidiaries of any Indebtedness in respect of (A) performance bonds, bankers’ acceptances, letters of credit, surety or appeal bonds or similar instruments provided by the Company or any Restricted Subsidiary in the ordinary course of business, (B) the financing of insurance premiums in the ordinary course of business or (C) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Company or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement;
(12) the incurrence by the Company or any of its Restricted Subsidiaries of any Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five business days of its incurrence;
(13) the incurrence by the Company or any of its Restricted Subsidiaries of any Indebtedness consisting of guaranteesindemnification, indemnities or obligations in respect adjustment of purchase price adjustments price, earn-out or similar obligations of the Company or any Restricted Subsidiary, in each case incurred in connection with the acquisition or disposition of any assets, including, without limitation, shares of Capital Stock; andbusiness or Person by the Company or any Restricted Subsidiary;
(1014) the incurrence by the Company and or any of its Restricted Subsidiaries of Refinancing Indebtedness issued any Guarantees in exchange forthe ordinary course of business of the obligations of suppliers, or customers, franchisers and licensees;
(15) the incurrence by Foreign Subsidiaries which have been designated Restricted Subsidiaries of additional Indebtedness, the proceeds of which are used for ordinary course business purposes, in an aggregate principal amount, at any time outstanding, not to repayexceed the greater of (x) $35.0 million and (y) 1.0% of Consolidated Net Tangible Assets;
(16) the incurrence by a joint venture since the issue date of additional Indebtedness or the guarantee by the Company or another Restricted Subsidiary of the Company of the same in an aggregate principal amount, redeemtaken together with all other Indebtedness incurred pursuant to this clause (16), defeaseat any time outstanding not to exceed $5.0 million, extendprovided, refinancehowever, renewthat such Indebtedness incurred pursuant to this clause (16) will be subordinated in right of payment to the Notes; and
(17) the incurrence by the Company or any of its Restricted Subsidiaries since the Issue Date of additional Indebtedness and/or the issuance by the Company of Disqualified Stock in an aggregate principal amount, replace accreted value or refundliquidation preference, as applicable, taken together with all other Indebtedness referred incurred pursuant to this clause (17), at any time outstanding, not to exceed $75.0 million. 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 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 4.08, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (21) through (517) above, and in the second paragraph of this clause (10) Section 4.08 or that was otherwise permitted is entitled to be incurred pursuant to the test set forth in the first paragraph of this Section 4.94.08, the Company shall, in its sole discretion, classify (or later reclassify in whole or in part) such item of Indebtedness in any manner that complies with this Section 4.08. Accrual of interest, accretion or amortization of original issue discount and the payment of interest in the form of additional Indebtedness shall not be deemed to be an incurrence of Indebtedness for purposes of this Section 4.08. In addition, for purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based upon 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 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 Permitted Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. Notwithstanding the foregoing, the maximum amount of Indebtedness that the Company may incur pursuant to this Section 4.08 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based upon the currency exchange rate applicable to the currencies in which such Permitted Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.
Appears in 1 contract
Samples: Indenture (Sba Communications Corp)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company Create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and the Borrower shall not, not issue any Disqualified Stock 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") any Indebtedness (including Acquired Debt) and the Company shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock. The first paragraph of this covenant will not prohibit the incurrence of any of the following items of Indebtedness or issuances of Disqualified Stock or preferred stock, as applicable (collectively, “Permitted Debt”):
(i) the incurrence by the Borrower and any Subsidiary of Indebtedness and letters of credit under one or more 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 Borrower and its Subsidiaries thereunder) not to exceed the greater of (a) $100.0 million and (b) 15.0% of the Borrower’s Consolidated Tangible Assets, determined at the time of incurrence;
(ii) Indebtedness outstanding on the Closing Date and listed on Schedule 7.03;
(iii) the incurrence by the Borrower and the Subsidiary Guarantors of Indebtedness represented by the Loans and the related Guarantees under the Loan Documents;
(iv) the incurrence by the Borrower and any of its Subsidiaries (other than Project Finance Subsidiaries) of Indebtedness represented by Capitalized Leases, 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, design, installation or improvement of property, plant or equipment used in the business of the Borrower or such Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed at any time outstanding the greater of (a) $50.0 million and (b) 7.5% of the Borrower’s Consolidated Tangible Assets, determined at the time of incurrence on a pro forma basis to give effect to the assets purchased, constructed, installed or improved;
(v) the incurrence by the Borrower or any of its Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance, defease, discharge or replace Indebtedness (other than intercompany Indebtedness) or preferred stock of any Subsidiary, in each case that was permitted to be incurred under clauses (ii), (iii), (iv), (v), (xiii), (xiv), (xviii), or (xx) of this paragraph;
(vi) the incurrence by the Borrower or any of its Subsidiaries (other than an Excluded Subsidiary or a Project Finance Subsidiary) of intercompany Indebtedness between or among the Borrower and any of its Subsidiaries (other than an Excluded Subsidiary or a Project Finance Subsidiary); provided that: (a) if the Borrower or any Subsidiary Guarantor is the obligor on any such Indebtedness that is owing to a 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 Loans, in the case of the Borrower, or the Guarantee pursuant to the Loan Documents, 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 Borrower or a Subsidiary of the Borrower and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Borrower or a Subsidiary of the Borrower will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Borrower or a Subsidiary, as the case may be, that was not permitted by this clause (vi);
(vii) the incurrence by the Borrower or any of its Subsidiaries of Hedging Obligations in the Ordinary Course of Business and not for speculative purposes;
(viii) the Guarantee by the Borrower or any of its Subsidiaries of Indebtedness of the Borrower or any Subsidiary Guarantors that was permitted to be incurred by another provision of this covenant; provided that if the Indebtedness that is being Guaranteed is subordinated in right of payment to the Loans or a Guarantee pursuant to the Loan Documents, then the Guarantee of that Indebtedness by the Borrower or its Subsidiary shall be subordinated in right of payment to the Loans or the Subsidiary Guarantor’s Guarantee pursuant to the Loan Documents, as the case may be;
(ix) the incurrence by the Borrower’s Subsidiaries of Non-Recourse Debt; provided that if any such Indebtedness ceases to be Non-Recourse Debt of such entity, such event will be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Borrower that was not permitted by this clause (ix);
(x) the incurrence by the Borrower or any of its Subsidiaries of Indebtedness in respect of workers’ compensation claims, public liability insurance, unemployment insurance, property, casualty or liability insurance, self-insurance obligations, bankers’ acceptances, or customs, completion, advance payment, performance, bid performance, appeal or surety bonds and other similar obligations in the Ordinary Course of Business, including guarantees or obligations with respect to letters of credit supporting the foregoing;
(xi) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the Ordinary Course of Business; provided that such Indebtedness is extinguished within five Business Days of incurrence;
(xii) Indebtedness represented by agreements of the Borrower or its Subsidiaries providing for indemnification, adjustment of purchase price, earn outs or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or Equity Interests of the Borrower or its 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 Borrower and its Subsidiaries in connection with such disposition;
(xiii) Indebtedness of (x) the Borrower or any Subsidiary incurred to finance an acquisition or (y) a Subsidiary incurred and outstanding on the date on which such Subsidiary was acquired by the Borrower (other than Indebtedness incurred in connection with, or in contemplation of, such acquisition); provided that after giving effect to such acquisition or at the time such Subsidiary is acquired by the Borrower, (A) the Fixed Charge Coverage Ratio for the Borrower’s most recently ended four full fiscal quarters for which financial statements have been delivered pursuant to Section 6.01(a) or (b) immediately preceding the date on which such additional Indebtedness is incurred or such Subsidiary is acquired would have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, as the case may be, at the beginning of such four-quarter period or (B) the Fixed Charge Coverage Ratio of the Borrower would be no less than immediately prior to such acquisition;
(xiv) Indebtedness of Foreign Subsidiaries (other than Project Finance Subsidiaries) in an aggregate amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance or replace any Indebtedness incurred pursuant to this clause (xiv), not to exceed $50 million;
(xv) the issuance by any of the Borrower’s Subsidiaries to the Borrower or to any of its 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 may incur Borrower or a Subsidiary thereof and (b) any sale or other transfer of any such preferred stock to a Person that is not either the Borrower or a Subsidiary thereof, will be deemed, in each case, to constitute an issuance of such preferred stock (as of the date of such sale or transfer) by such Subsidiary that was not permitted by this clause (xv);
(xvi) Indebtedness of the Borrower or any of its Subsidiaries consisting of (a) the financing of insurance premiums or (b) take-or-pay obligations contained in ordinary course supply arrangements;
(xvii) Indebtedness of the Borrower or any of its Subsidiaries in respect of (x) Treasury Management Arrangements and (y) in connection with the Specified Permitted Reorganization;
(xviii) the incurrence by the Borrower or any of its Subsidiaries of additional unsecured Indebtedness or Indebtedness secured on a pari passu or junior basis, in each case, 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 (xviii), in an aggregate principal amount not to exceed at any time outstanding $30.0 million;
(xix) the incurrence by Project Finance Subsidiaries of Project Financings; and
(xx) the incurrence of Indebtedness and may permit a Restricted Subsidiary the issuance of Disqualified Stock or preferred stock, in each case constituting Permitted Ratio Debt and any Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness so incurred, or Disqualified Stock or preferred stock so issued, pursuant to this clause (xx). For purposes of determining compliance with this Section 7.03, if an item of Indebtedness (including Acquired Debt) at any time meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xx) above, the Borrower will be permitted to classify (and later reclassify) in whole or in part, in its sole discretion such item of Indebtedness in any manner that complies with this Section 7.03. Indebtedness under the ABL Credit Agreement or any refinancings or replacements thereof, whether existing on the Closing Date or incurred thereafter, shall be classified under clause (i) of the second paragraph of this Section 7.03. For purposes of determining compliance with this Section 7.03, in connection with any commitment to incur Indebtedness if under this Section 7.03 (including, for the avoidance of doubt, with respect to any commitment to incur Indebtedness under the ABL Credit Agreement), the Borrower or any of its Subsidiaries may, pursuant to a certificate of a Responsible Officer delivered to the Administrative Agent at the time of such incurrence commitment, designate such Indebtedness as having been incurred on the date of such commitment (such date, the “Deemed Date”), and any related borrowing or other extension of credit will be deemed for all purposes under this Agreement to have been incurred on such Deemed Date, including without limitation for purposes of calculating usage of any baskets hereunder (if applicable), the Consolidated Leverage Ratio, Fixed Charge Coverage Ratio and Consolidated Tangible Assets and all such calculations on the Deemed Date and thereafter shall be made on a pro forma basis after giving effect thereto to the Leverage Ratio would be less than 6.5 to 1.0deemed incurrence and related transactions in connection therewith until such commitment is terminated. The foregoing limitations shall accrual of interest or preferred stock dividends, 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 apply to:
(1) be deemed to be an incurrence of Indebtedness or an issuance of preferred stock or Disqualified Stock for purposes of this covenant; provided, in each such case, that the incurrence by amount thereof is included in Fixed Charges of the Company Borrower as accrued. Further, the reclassification of any lease or other liability of the Borrower or any Restricted Subsidiary of Senior Bank Debt its Subsidiaries as Indebtedness due to a change in accounting principles after the Closing Date will not be deemed to be an aggregate amount not to exceed $100.0 million at incurrence of Indebtedness for purposes of this covenant. For purposes of determining compliance with any one time outstanding;
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(4) the issuance by the Company of the Notes;
(5) the incurrence by the Company 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) U.S. Dollar-denominated restriction on the incurrence of Indebtedness, the U.S. Dollar-equivalent principal amount of Indebtedness between (i) denominated in a foreign currency will be calculated based on the Company 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 the same foreign currency, and its Restricted Subsidiaries and (ii) such refinancing would cause the Restricted Subsidiaries;
(7) Hedging Obligations that are incurred for applicable U.S. Dollar-denominated restriction to be exceeded if calculated at the purpose relevant currency exchange rate in effect on the date of fixing or hedging interest rate risk with respect such refinancing, the U.S. Dollar-denominated restriction will be deemed not to any floating rate Indebtedness that is permitted by have been exceeded so long as the terms principal amount of the Indenture to be outstanding;
(8) refinancing Indebtedness does not exceed the incurrence by principal amount of 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 being refinanced. Notwithstanding 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 or refund, Indebtedness referred to in clauses (2) through (5) above, and this clause (10) or that was otherwise permitted to be incurred pursuant to the test set forth in the first paragraph other provision of this Section 4.97.03, the maximum amount of Indebtedness that the Borrower may incur pursuant to this covenant will not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies.
Appears in 1 contract
Samples: Second Lien Term Loan Credit Agreement (Nabors Industries LTD)
Incurrence of Indebtedness and Issuance of Preferred Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries 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 permit any of its Restricted Subsidiaries Subsidiary to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness and may permit a Restricted Subsidiary to incur Indebtedness or issue preferred stock if at the time of such incurrence or issuance and after giving effect thereto (including a pro forma application of the Leverage Ratio net proceeds therefrom), the leverage ratio would be less than 6.5 to 1.0. The foregoing limitations shall not apply to:
(1) the incurrence by the Company or any Restricted Subsidiary of Senior Bank Debt 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 the Restricted Subsidiaries thereunder) not to exceed $100.0 million at any one time outstanding3,260.0 million;
(2) the issuance by of the Restricted Subsidiaries of Subsidiary GuaranteesNote Guarantees and the Holdings Notes Guarantees on the date hereof;
(3) the incurrence by the Company and its the Restricted Subsidiaries of the Existing Indebtedness;
(4) the issuance by the Company of the NotesNotes and the Holdings Notes on the date hereof;
(5) the incurrence by the Company and its the Restricted Subsidiaries of Capital Lease Obligations Obligations, mortgage financings and/or additional Indebtedness constituting purchase money obligations obligations, including all Refinancing Indebtedness incurred with respect thereto, up to an aggregate of $5.0 million at any one time outstanding, provided that outstanding of the Liens securing such Indebtedness constitute Permitted Liensgreater of (i) $250.0 million and (ii) 5.0% of Consolidated Total Assets as of any date of incurrence;
(6) the incurrence or issuance of Indebtedness or preferred stock between (i) the Company and its the Restricted Subsidiaries and (ii) the Restricted Subsidiaries;
(7) the incurrence by the Company and the Restricted Subsidiaries of Hedging Obligations that are incurred for in the purpose ordinary course 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 outstandingbusiness;
(8) the incurrence by the Company and its the 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 outstandingbusiness;
(9) the incurrence by the Company and its the Restricted Subsidiaries of Indebtedness consisting of guaranteesGuarantees, 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 or any Restricted Subsidiary 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;
(11) the Guarantee by the Company or any Subsidiary Guarantor of Indebtedness of the Company or a Restricted Subsidiary and its the Guarantee by any non-guarantor Subsidiary 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 or the Note Guarantees, as applicable, then the Guarantee must be subordinated to the same extent as the Indebtedness Guaranteed;
(12) the incurrence by the Company and the 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, and this clause (1012) or clause below or that was otherwise permitted to be incurred pursuant to the test set forth in the first paragraph of this Section 4.94.10; and
(13) the incurrence by the Company 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, defease or discharge any Indebtedness incurred pursuant to this clause (13), not to exceed $50.0 million. Notwithstanding the foregoing, Restricted Subsidiaries 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 Restricted Subsidiaries that are non-guarantor Subsidiaries (excluding intercompany Indebtedness between or among the Company and the Restricted Subsidiaries) outstanding pursuant to such first paragraph or such clause, together with the aggregate liquidation preference of preferred stock issued by Restricted Subsidiaries that are non-guarantor Subsidiaries (excluding intercompany preferred stock issued between or among the Company and the Restricted Subsidiaries) outstanding pursuant to such provisions, would exceed the greater of (x) $750.0 million and (y) 1.0x Adjusted EBITDA as of any date of incurrence. The Company will not incur, and the Company will not permit any Subsidiary Guarantor to incur, any Indebtedness that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Subsidiary 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 or a Subsidiary Guarantor solely by virtue of 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 event that an item of Indebtedness meets the criteria of more than one of the categories of permitted debt described in clauses (1) through (13) above, or is entitled to be incurred pursuant to the first paragraph of this Section 4.10, 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 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 clause (1) above. The accrual of interest or preferred stock dividends, 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 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 thereof is included in the 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, the U.S. Dollar-equivalent principal amount of Indebtedness 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 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 the Company 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.
Appears in 1 contract
Samples: Senior Indenture (Iron Mountain Inc)
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, "INCUR"“incur”) any Indebtedness (including Acquired Debt) or issue any shares of Disqualified Stock and the Company shall will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company Borrower may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock and the Guarantors may permit a Restricted Subsidiary to incur Indebtedness if (including Acquired Debt) or issue shares of preferred stock if, in each case, the Borrower’s Debt to Cash Flow Ratio at the 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 after giving effect thereto to the Leverage Ratio use of the proceeds therefrom as if the same had occurred at the beginning of the most recently ended four full fiscal quarter period of the Borrower for which internal financial statements are available, would be less have been no greater than 6.5 7.0 to 1.0. The foregoing limitations shall provisions of the first paragraph of this Section 7.2 will not apply to:to the incurrence of any of the following (collectively, “Permitted Debt”):
(1i) Indebtedness under the Loan Documents;
(ii) the incurrence by the Company or any Restricted Subsidiary Borrower and the guarantee thereof by the Guarantors of Senior Bank Debt Indebtedness represented by the Second Lien Term Loan Obligations in an aggregate principal amount at any time outstanding not to exceed $100.0 million at (plus any one time outstandingaccumulated or capitalized interest therein) less the aggregate amount of all mandatory repayments of any Indebtedness under such Second Lien Term Loan facility pursuant to Section 2.12 thereof; provided that such Indebtedness is subject to the Intercreditor Agreement;
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3iii) the incurrence by the Company Borrower and its Restricted Subsidiaries of the Existing Indebtedness;
(4) the issuance by the Company of the Notes;
(5iv) the incurrence by the Company and Borrower or its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations and/or additional Indebtedness constituting Obligations, mortgage financings or Purchase Money Indebtedness, in each case incurred for the purpose of financing all or any part of the purchase money obligations up to price or cost of construction or improvement of property, plant or equipment used in the business of the Borrower or such Restricted Subsidiary, in an aggregate of amount not to exceed $5.0 20.0 million at any one time outstanding, provided that the Liens securing such including all Permitted Refinancing Indebtedness constitute Permitted Liensincurred pursuant to clause (v) below to refund, replace or refinance any Indebtedness incurred pursuant to this clause (iv);
(6v) the incurrence by the Borrower or any of its Restricted Subsidiaries 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 Agreement to be incurred by the first paragraph of this Section 7.2, or by clauses (iii), (iv), (v), (vii), (viii), (ix), (x), (xi) (xii) or (xiii) of this paragraph;
(vi) the incurrence of Indebtedness between or among the Borrower and any of its Restricted Subsidiaries; provided, however, that (ia) if the Borrower is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full of all Obligations with respect to this Agreement and (b) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Borrower or a Restricted Subsidiary, and any sale or other transfer of any such Indebtedness to a Person that is not either the Borrower or a Restricted Subsidiary, shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Borrower or such Restricted Subsidiary, as the case may be;
(vii) the Company and incurrence by the Borrower or any of its Restricted Subsidiaries and (ii) the Restricted Subsidiaries;
(7) 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 the Indenture this Agreement to be outstanding;
(8) viii) the incurrence guarantee by the Company and its Borrower or any Restricted Subsidiaries Subsidiary of Indebtedness arising out that was permitted to be incurred by another provision 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 outstandingthis Section 7.2;
(9ix) 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;
(x) the incurrence by the Company and Borrower or any of its Restricted Subsidiaries of Indebtedness consisting of guaranteesperformance, indemnities bid or advance payment bonds, surety bonds, custom bonds, utility bonds and similar obligations arising in respect the ordinary course of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock; andbusiness;
(10xi) the incurrence by the Company Borrower 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 the disposition of any business, asset or Subsidiary of the Borrower, provided that the maximum assumable Indebtedness shall at no time exceed the gross proceeds actually received by the Borrower and its Restricted Subsidiaries in connection with the disposition of any business, asset or Subsidiary of the Borrower;
(xii) the incurrence by the Borrower of Indebtedness in respect of Preferred Stock Exchange Notes issued as payment in kind interest on Preferred Stock Exchange Notes, to the extent such interest payments are made pursuant to the terms of the Preferred Stock Exchange Notes Indenture;
(xiii) the incurrence by the Borrower or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness issued in exchange for, or the proceeds of which are used incurred pursuant to repay, redeem, defease, extend, refinance, renew, replace or clause (v) above to refund, refinance or replace any Indebtedness referred incurred pursuant to this clause (xiii), not to exceed $35.0 million;
(xiv) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness in the form of customary obligations under indemnification, incentive, non-compete, consulting, deferred compensation, earn-out or other similar arrangement incurred in connection with a Permitted Investment; and
(xv) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness incurred in connection with the customary financing of insurance premiums. For purposes of determining compliance with this Section 7.2, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (2i) through (5xv) above, and this clause (10) above or that was otherwise permitted is entitled to be incurred pursuant to the test set forth in the first paragraph of this Section 4.97.2, the Borrower shall, in its sole discretion, classify and reclassify such item of Indebtedness in whole or in part in any manner that complies with this Section 7.2 and such item of Indebtedness will be treated as having been incurred pursuant to such clauses or pursuant to the first paragraph hereof. Accrual of interest, the accretion of accreted value, 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 Section 7.2.
Appears in 1 contract
Samples: First Lien Credit Agreement (Spanish Broadcasting System 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, "INCUR"''incur'') any Indebtedness (including Acquired Debt) and that the Company shall will not issue any Disqualified Stock and will 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 shares of Disqualified Stock and the Company's Restricted Subsidiaries may permit a Restricted Subsidiary to incur Indebtedness if (including Acquired Debt) or issue preferred stock if, in each case, the Company's Debt to Adjusted Consolidated Cash Flow Ratio at the time of incurrence of the Indebtedness or the issuance of the preferred stock, after giving pro forma effect to such incurrence or issuance as of such date and after giving effect thereto to the Leverage Ratio use of proceeds from such incurrence or issuance as if the same had occurred at the beginning of the most recently ended four full fiscal quarter period of the Company for which internal financial statements are available, would be less have been no greater than 6.5 7.5 to 1.01. The foregoing limitations provisions of the first paragraph of this Section 4.09 shall not apply to:prohibit the incurrence of any of the following items of Indebtedness or to the issuance of any of the following items of Disqualified Stock or preferred stock (collectively, ''Permitted Debt''):
(1) the incurrence by the Company or any of its Restricted Subsidiary Subsidiaries of Senior Bank Debt Indebtedness under Credit Facilities in an aggregate principal amount not (with letters of credit being deemed to exceed $100.0 million have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) at any one time outstandingoutstanding not to exceed the product of $150,000 times the number of Completed Towers on the date of such incurrence;
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Company of the Indebtedness represented by the Notes and the Senior Notes, each issued on the date hereof;
(4) the issuance by the Company of additional shares of its 12 3/4% Senior Exchangeable Preferred Stock due 2010 solely for the Notespurpose of paying dividends thereon and the incurrence by the Company of Indebtedness represented by the Company's 12 3/4% Senior Subordinated Exchange Debentures due 2010;
(5) the incurrence by the Company and or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations and/or additional Indebtedness constituting Obligations, mortgage financings or purchase money obligations up to an aggregate of $5.0 million at any one time outstandingobligations, 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 in each case incurred for the purpose of fixing financing all or hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms part of the Indenture to be outstanding;
(8) purchase price or cost of construction or improvement of property, plant or equipment used in the incurrence by business of the Company and its or such Restricted Subsidiaries of Indebtedness arising out of letters of creditSubsidiary, performance bonds, surety bonds and bankers' acceptances incurred in the ordinary course of business up to an aggregate of principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (5), not to exceed $5.0 10.0 million at any one time outstanding;
(96) the incurrence by the Company and or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness consisting in exchange for, or the net proceeds of guaranteeswhich are used to extend, indemnities refinance, renew, replace, defease or obligations in respect refund Indebtedness of purchase price adjustments in connection with the acquisition Company or disposition any of assetsits Restricted Subsidiaries or Disqualified Stock of the Company (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under the first paragraph of this Section 4.09 or clauses (2), including(3), without limitation(4), shares (5) or this clause (6) of Capital Stock; andthis paragraph;
(107) the incurrence by the Company and or any of its Restricted Subsidiaries of Refinancing intercompany Indebtedness issued in exchange forbetween or among the Company and any of its Restricted Subsidiaries; provided, or however, that:
(i) if the proceeds of which are used to repayCompany is the obligor on such Indebtedness, redeem, defease, extend, refinance, renew, replace or refund, such Indebtedness referred to in clauses (2) through (5) above, and this clause (10) or that was otherwise permitted to be incurred pursuant is expressly subordinated to the test set forth prior payment in full in cash of all Obligations with respect to the first paragraph Notes of this Section 4.9.such series and that:
(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, and
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 or otherwise become directly or indirectly liable with respect to (collectively, "INCURincur") any Indebtedness (including Acquired Debt) and the Company shall will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness and may permit a Restricted Subsidiary to incur Indebtedness if at the time of such incurrence and after giving effect thereto the Leverage Ratio would be less than 6.5 to 1.0. The foregoing limitations shall will not apply to:
to (1a) the incurrence by the Company or any Restricted Subsidiary of Senior Bank Debt in an aggregate amount not to exceed $100.0 million at any one time outstanding;
, (2b) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
, (3c) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
, (4d) the issuance by the Company of the Notes;
, (5e) the incurrence by the Company 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;
, (6f) the incurrence of Indebtedness between (i) the Company and its Restricted Subsidiaries and (ii) the Restricted Subsidiaries;
, (7g) 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 this Indenture to be outstanding;
, (8) h) 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;
, (9i) 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
, and (10j) 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 or refund, Indebtedness referred to in clauses (2b) through (5e) above, and this clause (10) or that was otherwise permitted to be incurred pursuant to the test set forth in the first paragraph of this Section 4.9j).
Appears in 1 contract
Samples: Indenture (Iron Mountain Inc /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, 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 (including Acquired Debt) or issue shares of Disqualified Stock and the Company's Restricted Subsidiaries may permit a Restricted Subsidiary to incur Indebtedness if if, in each case, the Company's Debt to Adjusted Consolidated 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 after giving effect thereto to the Leverage Ratio use of proceeds therefrom as if the same had occurred at the beginning of the most recently ended four full fiscal quarter period of the Company for which internal financial statements are available, would be less have been no greater than 6.5 7.5 to 1.01. The foregoing limitations provisions of the first paragraph of this Section 4.09 shall not apply to:to the incurrence of any of the following items of Indebtedness or to the issuance of any of the following items of Disqualified Stock or preferred stock (collectively, "Permitted Debt"): --------------
(1) the incurrence by the Company or any of its Restricted Subsidiary Subsidiaries of Senior Bank Debt Indebtedness (including Indebtedness under Credit Facilities) in an aggregate principal amount not (with letters of credit being deemed to exceed $100.0 million have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) at any one time outstandingoutstanding not to exceed the greater of (x) $200.0 million less the aggregate amount of all Net Proceeds of Asset Sales applied after the Issue Date to repay Indebtedness under a Credit Facility pursuant to Section 4.10 hereof and (y) 70% of the Eligible Receivables that are outstanding as of such date of incurrence;
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(43) the issuance incurrence by the Company of Indebtedness represented by the NotesDebentures;
(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 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 other Indebtedness incurred pursuant to this clause (4), not to exceed $10.0 million at any one time outstanding;
(5) the incurrence by the Company and or any of its Restricted Subsidiaries of Capital Lease Obligations and/or additional Permitted Refinancing Indebtedness constituting purchase money obligations up in exchange for, or the net proceeds of which are used to an aggregate extend, refinance, renew, replace, defease or refund Indebtedness of $5.0 million at the Company or any one time outstanding, provided of its Restricted Subsidiaries or Disqualified Stock of the Company (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under the Liens securing such Indebtedness constitute Permitted Liensfirst paragraph hereof or clauses (2) or (3) or this clause (5) of this paragraph;
(6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, that (i) if the Company and its Restricted Subsidiaries 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 Debentures and (iiii)(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 SubsidiariesSubsidiary and (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;
(7) 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 the this Indenture to be outstandingoutstanding or currency exchange risk;
(8) the incurrence guarantee by the Company and or any of its Restricted Subsidiaries of Indebtedness arising out of letters the Company or a Restricted Subsidiary of credit, performance bonds, surety bonds and bankers' acceptances the Company that was permitted to be incurred in the ordinary course by another provision of business up to an aggregate of $5.0 million at any one time outstandingthis Indenture;
(9) the incurrence by the Company and or any of its Restricted Subsidiaries of Indebtedness consisting of guarantees, indemnities or obligations in respect of purchase price adjustments Acquired Debt in connection with the acquisition of assets or disposition a new Subsidiary and the incurrence by the Company's Restricted Subsidiaries of assetsIndebtedness as a result of the designation of an Unrestricted Subsidiary as a Restricted Subsidiary; provided that, includingin the case of any such incurrence of Acquired Debt, such Acquired Debt 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 its Restricted Subsidiaries; and provided further that, in the case of any incurrence pursuant to this clause (9), as a result of such acquisition by the Company or one of its Restricted Subsidiaries, the Company's Debt to Adjusted Consolidated Cash Flow Ratio at the time of incurrence of such Acquired Debt, after giving pro forma effect to such incurrence as if the same had occurred at the beginning of the most recently ended four full fiscal quarter period of the Company for which internal financial statements are available, would have been less than the Company's Debt to Adjusted Consolidated Cash Flow Ratio for the same period without limitation, shares of Capital Stock; andgiving pro forma effect to such incurrence;
(10) the incurrence by the Company of Indebtedness not to exceed, at any one time outstanding, the sum of (i) 2.0 times the aggregate net cash proceeds plus (ii) 1.0 times the fair market value of non-cash proceeds (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee), in each case, from the issuance and sale, other than to a Subsidiary, of Equity Interests (other than Disqualified Stock) of the Company since the Issue Date (less the amount of such proceeds used to make Restricted Payments as provided in clause (3)(b) of the first paragraph or clause (2) of the second paragraph of Section 4.07 hereof); provided that such Indebtedness does not mature prior to the Stated Maturity of the Debentures and the Weighted Average Life to Maturity of such Indebtedness is longer than that of the Debentures; and
(11) the incurrence by the Company or any of its Restricted Subsidiaries of Refinancing additional Indebtedness and/or the issuance by the Company of Disqualified Stock in an aggregate principal amount, accreted value or liquidation preference, as applicable, at any time outstanding, not to exceed an amount equal to $100.0 million less the aggregate amount of all Investments made pursuant to clause (12) of the definition of Permitted Investments; provided that, notwithstanding the foregoing, the aggregate principal amount, accreted value or liquidation preference, as applicable, permitted to be incurred or issued pursuant to this clause (11) shall not be reduced to less than $25.0 million. For purposes of determining compliance with this Section 4.09, in exchange for, or the proceeds event that an item of which are used to repay, redeem, defease, extend, refinance, renew, replace or refund, Indebtedness referred to meets the criteria of more than one of the categories of Permitted Debt described in clauses (21) through (511) above, and this clause (10) above or that was otherwise permitted is entitled to be incurred pursuant to the test set forth in the first paragraph of this Section 4.94.09, the Company shall, in its sole discretion, classify (or later reclassify in whole or in part) such item of Indebtedness in any manner that complies with this Section 4.09. Any Indebtedness incurred pursuant to clause (1) of the second paragraph of Section 9.2 of the Certificate of Designations shall be deemed to have been incurred under clause (1) above on the Exchange Date. Accrual of interest, accretion or amortization of original issue discount and the payment of interest in the form of additional Indebtedness shall not be deemed to be an incurrence of Indebtedness for purposes of this Section 4.09.
Appears in 1 contract
Samples: Exchange Indenture (Crown Castle International Corp)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) 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, "INCUR"“incur”) any Indebtedness (including Acquired Debt) ), and the Company shall will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness and may permit a Restricted Subsidiary to incur Indebtedness if at the time ,
(b) The provisions of such incurrence and after giving effect thereto the Leverage Ratio would be less than 6.5 to 1.0. The foregoing limitations Section 4.7(a) hereof shall not apply to:
prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”): (1) the incurrence by the Company or any Restricted Subsidiary and the Guarantors of Senior Bank Debt Indebtedness under the Credit Agreement in an aggregate principal amount outstanding at any time not to exceed $100.0 million at the original aggregate amount of total revolving commitments specified in the Credit Agreement as of the Closing Date (for the avoidance of doubt, such amount does not include any one time outstanding;
incremental commitments or other commitments); (2) the issuance incurrence by the Restricted Subsidiaries Company and the Guarantors of Subsidiary Guarantees;
the Notes and Note Guarantees in the aggregate principal amount to be issued on the Closing Date; (3) the incurrence by the Company and or any of its Restricted Subsidiaries of the Existing Indebtedness;
Indebtedness and any Permitted Refinancing Indebtedness that is incurred pursuant to or in lieu of a commitment in existence as of the Closing Date; (4) the issuance incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness (including Capital Lease Obligations, mortgage financings, purchase money obligations and government bond financings) incurred to finance (or to reimburse the Company or any of its Restricted Subsidiaries for) all or any part of the Notes;
purchase price or installation or improvement of any Aircraft Asset used in the business of the Company or any of its Restricted Subsidiaries or leased to any third party; (5) the incurrence by the Company and its Restricted Subsidiaries or any 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 an aggregate principal amount up to an aggregate of $5.0 million at any one time outstanding;
the sum of: (9A) the incurrence by greater of (x) $500.0 million and (y) 100% of the Company and its Restricted Subsidiaries Company’s Consolidated EBITDAR for the most recent four consecutive fiscal quarters ending prior to the date of Indebtedness consisting such determination (as calculated on a pro forma basis); plus (B) all voluntary prepayments, debt buybacks (up to the actual amount of guarantees, indemnities or obligations the resulting reduction 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 or refund, Indebtedness referred to in clauses (2) through (5) aboveIndebtedness), and this clause (10) or that was otherwise payments utilizing the yank a bank provisions, as applicable, of the Indebtedness permitted to be incurred pursuant under the Credit Agreement and the other Loan Documents consisting of the issuance or incurrence of any senior or subordinated Indebtedness, to the test set forth in extent accompanied by a permanent reduction of revolving commitments and to the first paragraph extent not made with the proceeds of this Section 4.9.long term Indebtedness (other than revolving indebtedness); plus
Appears in 1 contract
Samples: Indenture (Allegiant Travel CO)
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 (including Acquired Debt) or issue Disqualified Stock and the Company's Restricted Subsidiaries may permit a Restricted Subsidiary to incur Indebtedness (including Acquired Debt) or issue 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 preferred stock, after giving pro forma effect to such incurrence or issuance as of such date and after giving effect thereto to the Leverage Ratio use of proceeds therefrom as if the same had occurred at the beginning of the most recently ended four full fiscal quarter period of the Company for which internal financial statements are available, would be less have been no greater than 6.5 5.0 to 1.01. The foregoing limitations shall first paragraph of this Section 4.09 will not apply to:prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(1) the incurrence by the Company or any and its Restricted Subsidiary Subsidiaries of Senior Bank Debt 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 Subsidiaries thereunder) not to exceed $100.0 200.0 million at less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company or any one time outstandingof 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 permanent commitment reduction thereunder pursuant to Section 4.10 hereof;
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3) 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 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;
(4) the issuance 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 Notespurchase price or cost of cellular wireless licenses, 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 refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (4), not to exceed $25.0 million at any time outstanding;
(5) the incurrence by the Company and or any of its Restricted Subsidiaries of Capital Lease Obligations and/or additional Permitted Refinancing Indebtedness constituting purchase money obligations up in exchange for, or the net proceeds of which are used to an aggregate refund, refinance, replace, defease or discharge Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under the first paragraph of $5.0 million at any one time outstandingthis Section 4.09 or clauses (2), provided that the Liens securing such Indebtedness constitute Permitted Liens(3), (4), (5) or (12) of this paragraph;
(6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that:
(a) if the Company or any 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 and its or a Restricted Subsidiaries 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 SubsidiariesSubsidiary 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) Hedging Obligations that are incurred for the purpose issuance by any of fixing the Company's Restricted Subsidiaries to the Company or hedging interest rate risk with respect to any floating rate Indebtedness 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 the terms of the Indenture to be outstandingthis clause (7);
(8) the incurrence by the Company and or any of its Restricted Subsidiaries of Indebtedness arising out of letters of credit, performance bonds, surety bonds and bankers' acceptances incurred Hedging Obligations in the ordinary course of business up to an aggregate of $5.0 million at any one time outstandingbusiness;
(9) the incurrence guarantee by the Company and its Restricted Subsidiaries or any of the Guarantors 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 or a Restricted Subsidiaries Subsidiary 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 referred to in clauses (2) through (5) above, and this clause (10) or Company that was otherwise permitted to be incurred pursuant to the test set forth in the first paragraph by another provision of this Section 4.9.4.09; 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;
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 will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock and its Restricted Subsidiaries may permit a Restricted Subsidiary to incur Indebtedness or issue Disqualified Stock or preferred stock if at either:
(i) the time of such incurrence and after giving effect thereto the Consolidated Leverage Ratio would be is less than 6.5 5.5 to 1.0 (prior to May 15, 2001) or 5.0 to 1.0 (subsequent to May 15, 2001); or
(ii) the Consolidated Capital Ratio is less than 2.5 to 1.0. The foregoing limitations shall Notwithstanding the foregoing, the provisions of the paragraph set forth above will not apply to:to the incurrence of any of the following items of Indebtedness (collectively, "Permitted Indebtedness"):
(1a) The incurrence by the Company of Indebtedness represented by the Notes and the Exchange Notes;
(b) The incurrence by the Company or any Restricted Subsidiary of Senior Bank Debt in an aggregate amount not to exceed $100.0 million at any one time outstanding;
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(4c) the issuance The incurrence of Indebtedness by the Company to any Restricted Subsidiary or Indebtedness of any Restricted Subsidiary to the NotesCompany or any other Restricted Subsidiary (but only for so long as such Indebtedness is held by the Company or such Restricted Subsidiary);
(5d) the The incurrence by the Company and or any of its Restricted Subsidiaries of Capital Lease Obligations and/or additional Indebtedness constituting (other than leases of backhaul services), mortgage financings or purchase money obligations up to 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 of principal amount not to exceed $5.0 25.0 million at any one time outstanding, provided that the Liens securing such Indebtedness constitute Permitted Liens;
(6e) the The incurrence of Indebtedness between (i) by the Company and or any of its Restricted Subsidiaries and (ii) of Indebtedness pursuant to acquisitions of capacity made in the Restricted Subsidiariesordinary course of business;
(7f) 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 or foreign currency exchange rate risk with respect to any floating rate Indebtedness that is permitted by the terms of the this Indenture to be outstanding;
(8) the g) The incurrence by the Company and or any of its Restricted Subsidiaries of Indebtedness arising out of letters a Restricted Subsidiary incurred and outstanding on the date on which such Restricted Subsidiary was acquired by the Company; provided, however, that at the time such Restricted Subsidiary is acquired by the Company (giving effect to such acquisition), the Company would have been able to incur $1.00 of credit, performance bonds, surety bonds and bankers' acceptances incurred in additional Indebtedness pursuant to the ordinary course of business up to an aggregate of $5.0 million at any one time outstandingimmediately preceding paragraph;
(9h) the The incurrence by the Company and or any of 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 Permitted Refinancing Indebtedness issued in exchange for, or the net proceeds of which are used to repay, redeem, defease, extend, refinance, renew, replace or refund, refinance or replace Indebtedness referred (other than intercompany Indebtedness) that was permitted by the Indenture to in be incurred pursuant to the immediately preceding paragraph hereof or clauses (2) through a), (5) aboveb), and this clause (10d), (g), (h), (i), (k), (n) or that was (o) of this paragraph;
(i) The incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness not otherwise permitted to be incurred pursuant to this paragraph 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 (i), not to exceed $50.0 million;
(j) The incurrence of Indebtedness by a Receivables Entity in a Qualified Receivables Transaction, provided that the test set forth proceeds thereof are applied in accordance with Section 4.10 hereof;
(k) The incurrence by the Company or any Restricted Subsidiary of Purchase Money Indebtedness, provided that the amount of such Purchase Money Indebtedness does not exceed 100% of the cost of construction, installation, acquisition, lease, development, design, engineering, financing, testing, start- up, upgrade, completion or improvement of assets (together with related costs and expenses) used in the first paragraph business of the Company or such Restricted Subsidiary;
(l) Letters of Credit that are cash collateralized;
(m) Letters of Credit in an aggregate principal amount equal to $200.0 million less the amount of outstanding Indebtedness under clause (n) of this paragraph;
(n) The incurrence by the Company or any of its Restricted Subsidiaries of revolving credit Indebtedness in an aggregate amount not to exceed $200.0 million at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (n); and
(o) The guarantee by the Company or any Restricted Subsidiary of Indebtedness of the Company or any Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Section 4.9. The Company will not, and will not permit any of its Restricted Subsidiaries to, incur any Indebtedness (including Permitted Indebtedness) that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Restricted Subsidiary 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.
Appears in 1 contract
Samples: Indenture (Global Crossing LTD)
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 will 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 shares of Disqualified Stock and the Company's Restricted Subsidiaries may permit a Restricted Subsidiary to incur Indebtedness if (including Acquired Debt) or issue preferred stock if, in each case, the Company's Debt to Adjusted Consolidated Cash Flow Ratio at the time of incurrence of the Indebtedness or the issuance of the preferred stock, after giving pro forma effect to such incurrence or issuance as of such date and after giving effect thereto to the Leverage Ratio use of proceeds from such incurrence or issuance as if the same had occurred at the beginning of the most recently ended four full fiscal quarter period of the Company for which internal financial statements are available, would be less have been no greater than 6.5 7.5 to 1.01. The foregoing limitations provisions of the first paragraph of this Section 4.09 shall not apply to:prohibit the incurrence of any of the following items of Indebtedness or to the issuance of any of the following items of Disqualified Stock or preferred stock (collectively, "Permitted Debt"):
(1) the incurrence by the Company or any of its Restricted Subsidiary Subsidiaries of Indebtedness under Credit Facilities since the date of the August 1999 Senior Bank Debt Note Indenture in an aggregate principal amount not (with letters of credit being deemed to exceed $100.0 million have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) at any one time outstandingoutstanding not to exceed the product of $150,000 times the number of Completed Towers on the date of such incurrence;
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Company of the Indebtedness represented by notes issued on the date of the May 1999 Senior Discount Note Indenture;
(4) the issuance by the Company of additional shares of its 12 3/4% Senior Exchangeable Preferred Stock due 2010 solely for the Notespurpose of paying dividends thereon and the incurrence by the Company of Indebtedness represented by the Company's 12 3/4% Senior Subordinated Exchange Debentures due 2010;
(5) the incurrence by the Company and or any of its Restricted Subsidiaries of Indebtedness since the date of the August 1999 Senior Note Indenture represented by Capital Lease Obligations and/or additional Indebtedness constituting Obligations, mortgage financings or purchase money obligations up to an aggregate of $5.0 million at any one time outstandingobligations, 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 in each case incurred for the purpose of fixing financing all or hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms part of the Indenture to be outstanding;
(8) purchase price or cost of construction or improvement of property, plant or equipment used in the incurrence by business of the Company and its or such Restricted Subsidiaries of Indebtedness arising out of letters of creditSubsidiary, performance bonds, surety bonds and bankers' acceptances incurred in the ordinary course of business up to an aggregate of principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (5), not to exceed $5.0 10.0 million at any one time outstanding;
(96) the incurrence by the Company and or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness consisting in exchange for, or the net proceeds of guaranteeswhich are used to extend, indemnities refinance, renew, replace, defease or obligations in respect refund Indebtedness of purchase price adjustments in connection with the acquisition Company or disposition any of assetsits Restricted Subsidiaries or Disqualified Stock of the Company (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under the first paragraph of this Section 4.09 or clauses (2), including(3), without limitation(4), shares (5) or this clause (6) of Capital Stock; andthis paragraph;
(107) the incurrence by the Company and or any of its Restricted Subsidiaries of Refinancing intercompany Indebtedness issued in exchange forbetween or among the Company and any of its Restricted Subsidiaries; provided, or however, that:
(i) if the proceeds of which are used to repayCompany is the obligor on such Indebtedness, redeem, defease, extend, refinance, renew, replace or refund, such Indebtedness referred to in clauses (2) through (5) above, and this clause (10) or that was otherwise permitted to be incurred pursuant is expressly subordinated to the test set forth prior payment in full in cash of all Obligations with respect to the first paragraph Notes of this Section 4.9.such series and that:
(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; and
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) ), the Company will not, and will not permit any of its Restricted Subsidiaries to, issue any Disqualified Stock, and the Company shall will not permit any of its Restricted Subsidiaries to issue any other shares of preferred stockPreferred Stock; provided, however, that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and any of its Restricted Subsidiaries may permit a Restricted Subsidiary to incur Indebtedness (including Acquired Debt) or issue Disqualified Stock or other shares of Preferred Stock, if at (i) in the time case of such incurrence and after giving effect thereto the Leverage Ratio would be less than 6.5 to 1.0. The foregoing limitations shall not apply to:
(1) the incurrence of Indebtedness or issuance of Disqualified Stock by the Company or any Restricted Subsidiary of Senior Bank Debt in an aggregate amount not to exceed $100.0 million at any one time outstanding;
(2) the issuance by the Restricted Subsidiaries of Subsidiary Guarantees;
(3) the incurrence by the Company and its Restricted Subsidiaries Company, as of the Existing Indebtedness;
date of such incurrence or issuance and after giving effect thereto and to the application of proceeds therefrom, the Company’s Debt to Assets Ratio would not exceed 0.8 to 1.0, (4ii) in the issuance by the Company case of the Notes;
(5) the incurrence by the Company 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 or issuance of Disqualified Stock by Venoco or any Restricted Subsidiary of Venoco, in addition to compliance with clause (i) above, as of the Company date of such incurrence or issuance and its Restricted Subsidiaries after giving effect thereto and to the application of proceeds therefrom, Venoco’s Debt to Assets Ratio would not exceed 0.6 to 1.0, and (iiiii) in 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 case of the Indenture to be outstanding;
(8) the incurrence by the Company and its Restricted Subsidiaries issuance 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 Preferred Stock (other than Disqualified Stock; and
) by any Restricted Subsidiary of the Company, the Company’s Fixed Charge Coverage Ratio for its most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such shares of Preferred Stock are issued would have been at least 2.0 to 1.0, determined on a pro forma basis (10) including a pro forma application of the incurrence by net proceeds therefrom), as if the Company and its Restricted Subsidiaries shares of Refinancing Indebtedness Preferred Stock had been issued in exchange for, or at the proceeds beginning of which are used to repay, redeem, defease, extend, refinance, renew, replace or refund, Indebtedness referred to in clauses (2) through (5) above, and this clause (10) or that was otherwise permitted to be incurred pursuant to the test set forth in the first paragraph of this Section 4.9such four-quarter period.
Appears in 1 contract
Samples: Indenture (DENVER PARENT Corp)
Incurrence of Indebtedness and Issuance of Preferred Stock. (a) The Company and each Restricted Subsidiary shall not, and the Company 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 or issue Disqualified Stock, the Company shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock except for preferred stock issued to and held by the Company or any Wholly-Owned Restricted Subsidiary of the Company and each Residual Collateral Trust shall not, and the Company shall not permit any Residual Collateral Trust to issue any shares of preferred stock; provided, however, that the Company or any Subsidiary Guarantor (other than the Residual Collateral Trusts) may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock and any Subsidiary Guarantor (other than the Residual Collateral Trusts) may permit a Restricted Subsidiary to incur Indebtedness if at issue preferred stock if, on the time date of such incurrence or issuance and after giving effect thereto thereto, the Consolidated Leverage Ratio would be less than 6.5 does not exceed 2.0 to 1.0. .
(b) The foregoing limitations shall provisions will not apply to:
(1i) the incurrence by the Company or any Restricted Subsidiary (other than the Residual Collateral Trusts) of Senior Bank Debt 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 used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount not to exceed $100.0 15.0 million at any one time outstandingin the aggregate since the Original Issue Date;
(2ii) the issuance existence of Warehouse Facilities, regardless of amount, and the incurrence of Permitted Warehouse Debt by the Company or any of its Restricted Subsidiaries (other than the Residual Collateral Trusts); provided, however, that to the extent any such Indebtedness of the Company or a Restricted Subsidiary of the Company ceases to constitute Permitted Warehouse Debt, to such extent such Indebtedness shall be deemed to be incurred by the Company or such Restricted Subsidiary of the Company, as the case may be, at such time;
(iii) the incurrence by the Company or any of its Restricted Subsidiaries (other than the Residual Collateral Trusts) of intercompany Indebtedness owing to the Company or any of its Restricted Subsidiaries; provided, however, that any Indebtedness of the Company to any Restricted Subsidiary is permitted by Section 4.07 hereof;
(iv) the incurrence by the Company of Indebtedness represented by the Senior Notes and the incurrence by the Subsidiary Guarantors of the Subsidiary Guarantees;
(3v) Indebtedness of the Company and its Restricted Subsidiaries (other than the Residual Collateral Trusts) outstanding on the Original Issue Date;
(vi) the incurrence by the Company or any of its Restricted Subsidiaries (other than the Residual Collateral Trusts) of Permitted Refinancing Indebtedness with respect to Indebtedness that was permitted by this Indenture to be incurred or that was outstanding at the Original Issue Date;
(vii) the incurrence by the Company or any of its Restricted Subsidiaries (other than the Residual Collateral Trusts) of Hedging Obligations directly related to (w) Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted by this Indenture to be incurred, (x) Receivables held by the Company or a Restricted Subsidiary pending sale in a Securitization, (y) Receivables of the Company or a Restricted Subsidiary that have been sold pursuant to a Warehouse Facility; or (z) Receivables that the Company or a Restricted Subsidiary reasonably expects to purchase or commit to purchase, finance or accept as collateral; provided, however, that, in the case of each of the foregoing clauses (w) through (z), such Hedging Obligations are eligible to receive hedge accounting treatment in accordance with GAAP as applied by the Company and its Restricted Subsidiaries on the Original Issue Date;
(viii) the incurrence of Acquired Debt by the Company or any Subsidiary Guarantor (other than the Residual Collateral Trusts) in a principal amount not to exceed $15.0 million in the aggregate since the Original Issue Date that is without recourse to the Company or any of its Restricted Subsidiaries or any of their respective assets (other than the Subsidiary Guarantor acquired subject to such Acquired Debt), and is not guaranteed by any such Person;
(ix) the Guarantee by the Company or any of the Subsidiary Guarantors (other than the Residual Collateral Trusts) of the Indebtedness of the Company or another Subsidiary Guarantor that was permitted to be incurred by another provision of this Section 4.09;
(x) the incurrence by the Company and its Restricted the Subsidiary Guarantors of Indebtedness (other than the Residual Collateral Trusts) secured by (A) Servicing Receivables (other than those on deposit in the Residual Collateral Trusts), (B) Residual Receivables (other than those on deposit in the Residual Collateral Trusts) or (C) the Capital Stock of Subsidiaries (other than the Residual Collateral Trusts or the other Subsidiary Guarantors) substantially all of the Existing Indebtednessassets of which are Residual Receivables and/or Servicing Receivables;
(4) the issuance by the Company of the Notes;
(5xi) the incurrence by the Company and its Restricted Subsidiaries the Subsidiary Guarantors (other than the Residual Collateral Trusts) of Capital Lease Obligations and/or additional Indebtedness constituting purchase money obligations up to in an aggregate of $5.0 million principal amount at any one time outstanding, provided that the Liens securing such Indebtedness constitute Permitted Liensoutstanding not to exceed $10.0 million;
(6xii) 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;
(9A) the incurrence by an Unrestricted Subsidiary of 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, Non-Recourse Debt (including, without limitation, shares Non-Recourse Debt that would constitute Permitted Warehouse Debt if incurred by a Restricted Subsidiary of Capital Stockthe Company); provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of the Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary and (B) the issuance by an Unrestricted Subsidiary of the Company of preferred stock; and
(10xiii) the incurrence by Guaranteed Obligations and the Collateral securing the same.
(c) The Company shall not, and shall not permit any Subsidiary Guarantor to, incur any Indebtedness that is contractually subordinated to any Indebtedness of the Company and its Restricted Subsidiaries of Refinancing or any such Subsidiary Guarantor unless such Indebtedness issued in exchange foris also contractually subordinated to the Senior Notes, or the proceeds Subsidiary Guarantee of which are used such Subsidiary Guarantor (as applicable), on substantially identical terms; provided, however, that no Indebtedness shall be deemed to repaybe contractually subordinated to any other Indebtedness solely by virtue of being unsecured or of limited recourse.
(d) For purposes of determining compliance with this covenant, redeem, defease, extend, refinance, renew, replace or refund, in the event that an item of Indebtedness referred to meets the criteria of more than one of the categories of Indebtedness described in clauses (2i) through (5xii) above, and this clause (10of Section 4.09(b) above or that was otherwise permitted is entitled to be incurred pursuant to Section 4.09(a), the test set forth Company shall, in the first paragraph its sole discretion, classify such item of Indebtedness in any manner than complies with this covenant and such item of Indebtedness will be treated as having been incurred pursuant to only one of such clauses or pursuant to Section 4.94.09(a).
Appears in 1 contract
Samples: Indenture (Delta Financial Corp)
