Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be greater than 2.0:1 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt. (b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period. (c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary. (d) Notwithstanding paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt. (e) For purposes of determining any particular amount of Debt under this Section 4.6, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debt. For purposes of determining compliance with this Section 4.6, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence), including under Section 4.6(a) of this Section 4.6, the Company, in its sole discretion, shall classify, and from time to time may reclassify, such item of Debt. (f) The Issuers and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.
Appears in 3 contracts
Samples: Indenture (Petro Stopping Centers L P), Indenture (Petro Financial Corp), Indenture (Petro Stopping Centers Holdings Lp)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified PeriodFour-Quarter Period (as defined below), had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four-Quarter Period, and any other Debt repaid since the beginning of the Specified Four-Quarter Period had been repaid at the beginning of the Specified Four-Quarter Period, would be greater than 2.0:1 2.25:1 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If; provided further, during that Restricted Subsidiaries that are not Guarantors may not Incur any Debt pursuant to this paragraph if the Specified Period or subsequent thereto and prior to the date Secured Leverage Ratio of determination, the Company or any of and its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisitionSubsidiaries, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated determined on a pro forma basis giving effect to as if any such Asset Sale or acquisition or designation, as the case may beDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day beginning of the Specified Period.
Four-Quarter Period (cas defined below) If had been Incurred and the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction proceeds thereof had occurred been applied at the beginning of the Specified Four-Quarter Period) to the Incurrence of such Acquired Debt or such , and any other Debt by repaid since the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA beginning of the EBITDA Four-Quarter Period had been repaid at the beginning of the acquired PersonFour-Quarter Period, business, Property or assets or redesignated Subsidiary.
(d) would be greater than 3.0:1. Notwithstanding paragraph (a) abovethe immediately preceding paragraph, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(apart (a) in the first paragraph of this Section 4.64.9, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
(f) The Issuers and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; , provided that Debt Incurred under the Credit Facilities on the Issue Date shall at all times be treated as Incurred pursuant to clause (i) of the definition of “Permitted Debt”. The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be considered subordinate deemed to be an Incurrence of Debt or junior in right issuance of payment to any other Debt solely by virtue Capital Interests for purposes of being unsecured or secured to a greater or lesser extent or with greater or lower prioritythis Section 4.9.
Appears in 2 contracts
Samples: Indenture (Triumph Group Inc), Indenture (Triumph Group Inc)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified PeriodFour Quarter Period (as defined below) (provided that any Debt Incurred under the revolving portion of a credit agreement shall be calculated (x) on an annualized basis for periods prior to the one year anniversary of the Issue Date and (y) thereafter, only on such date), had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 and (b) no Default or Event is at least 2.00:1.00; provided further, that the aggregate principal amount of Default Debt Incurred by Restricted Subsidiaries that are not Guarantors pursuant to this paragraph shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) not exceed $10.0 million. If, during the Specified Four Quarter Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale asset sale or asset acquisition, investments, mergers, consolidations, discontinued operations (as determined in accordance with GAAP) or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA Consolidated Cash Flow Available for Fixed Charges and Adjusted Consolidated Interest Expense for the Specified Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale asset sale or acquisition asset acquisition, investments, mergers, consolidations, discontinued operations or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition Asset Acquisition or designation had occurred on the first day of the Specified Four Quarter Period.
(c) . If the Debt which that is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion inclusion, in EBITDA Consolidated Cash Flow Available for Fixed Charges, of the EBITDA Consolidated Cash Flow Available for Fixed Charges of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) . Notwithstanding the first paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall initially be treated as Incurred pursuant to clause (i)(bi) of the definition of "“Permitted Debt," (y) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall ” and may not later be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debt. For purposes of determining compliance with this Section 4.6, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence), including under Section 4.6(a) of this Section 4.6, the Company, in its sole discretion, shall classify, and from time to time may reclassify, such item of Debt.
(f) The Issuers and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.re-classified and
Appears in 2 contracts
Samples: Indenture (Ryerson Holding Corp), Indenture (Ryerson International Material Management Services, Inc.)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Acquired Debt (including or any other Debt; provided that the Company and any of its Restricted Subsidiaries may Incur any Acquired Debt), unlessDebt or any other Debt if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously, other than Debt Incurred under the revolving portion of a Credit Facility), and any other Debt Incurred since the beginning of the Specified PeriodFour Quarter Period (other than Debt Incurred under the revolving portion of a Credit Facility), had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid (other than Debt Incurred under the revolving portion of a Credit Facility) since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would would, (i) with respect to any Incurred Acquired Debt, either (A) be greater than 2.0:1 2.00 to 1.00 or (B) increase, and, (ii) with respect to any other Incurred Debt, be greater than 2.00 to 1.00 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) . If, during the Specified Four Quarter Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisitionAsset Acquisition, Investment, merger, consolidation, discontinued operation (as determined in accordance with GAAP) or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA Consolidated Cash Flow Available for Fixed Charges and Adjusted Consolidated Interest Expense for the Specified Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition Asset Acquisition, Investment, merger, consolidation, discontinued operation or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition Asset Acquisition, Investment, merger, consolidation, discontinued operation or designation had occurred on the first day of the Specified Four Quarter Period.
(c) . If the Debt which is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous substantially contemporaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to (x) the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and (y) the inclusion inclusion, in EBITDA Consolidated Cash Flow Available for Fixed Charges, of the EBITDA Consolidated Cash Flow Available for Fixed Charges of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) . Notwithstanding the first paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than above, including categories of Permitted Debt referred to in and under clause (xa) of the preceding sentence), including under Section 4.6(a) first paragraph of this Section 4.64.9, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
(f) . For purposes of determining compliance of any non-U.S. dollar-denominated Debt with this Section 4.9, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term Debt, or first committed, in the case of revolving credit Debt, provided, however, that if such Debt is Incurred to refinance other Debt denominated in the same or different 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 refinancing Debt does not exceed the principal amount of such indebtedness being refinanced. The Issuers accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt for purposes of this Section 4.9. The Company and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees at least to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower prioritypriority or by virtue of structural subordination.
Appears in 2 contracts
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified PeriodFour-Quarter Period (as defined below), had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four-Quarter Period, and any other Debt repaid since the beginning of the Specified Four-Quarter Period had been repaid at the beginning of the Specified Four-Quarter Period, would be greater than 2.0:1 2.00:1 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If; provided further, during that Restricted Subsidiaries that are not Guarantors may not Incur any Debt pursuant to this paragraph if the Specified Period or subsequent thereto and prior to the date Secured Leverage Ratio of determination, the Company or any of and its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisitionSubsidiaries, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated determined on a pro forma basis giving effect to as if any such Asset Sale or acquisition or designation, as the case may beDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day beginning of the Specified Period.
Four-Quarter Period (cas defined below) If had been Incurred and the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction proceeds thereof had occurred been applied at the beginning of the Specified Four-Quarter Period) to the Incurrence of such Acquired Debt or such , and any other Debt by repaid since the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA beginning of the EBITDA Four-Quarter Period had been repaid at the beginning of the acquired PersonFour-Quarter Period, business, Property or assets or redesignated Subsidiary.
(d) would be greater than 3.00:1. Notwithstanding paragraph (a) abovethe immediately preceding paragraph, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under this Section 4.6SECTION 4.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.6SECTION 4.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(apart (a) in the first paragraph of this Section 4.6SECTION 4.9, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
(f) The Issuers and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; , provided that Debt Incurred under the Credit Facilities on the Issue Date shall at all times be treated as Incurred pursuant to clause (i) of the definition of “Permitted Debt”. The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be considered subordinate deemed to be an Incurrence of Debt or junior in right issuance of payment to any other Debt solely by virtue Capital Interests for purposes of being unsecured or secured to a greater or lesser extent or with greater or lower prioritythis SECTION 4.9.
Appears in 2 contracts
Samples: Indenture (Triumph Group Inc), Indenture (Triumph Group Inc)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified PeriodFour Quarter Period (as defined below) (provided that any Debt Incurred under the revolving portion of a credit agreement shall be calculated (x) on an annualized basis for periods prior to the one year anniversary of the Issue Date and (y) thereafter, only on such date), had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 and (b) no Default or Event is at least 2.00:1.00; provided further, that the aggregate principal amount of Default Debt Incurred by Restricted Subsidiaries that are not Guarantors pursuant to this paragraph shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) not exceed $10.0 million. If, during the Specified Four Quarter Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale asset sale or asset acquisition, investments, mergers, consolidations, discontinued operations (as determined in accordance with GAAP) or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA Consolidated Cash Flow Available for Fixed Charges and Adjusted Consolidated Interest Expense for the Specified Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale asset sale or acquisition asset acquisition, investments, mergers, consolidations, discontinued operations or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition Asset Acquisition or designation had occurred on the first day of the Specified Four Quarter Period.
(c) . If the Debt which that is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion inclusion, in EBITDA Consolidated Cash Flow Available for Fixed Charges, of the EBITDA Consolidated Cash Flow Available for Fixed Charges of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) . Notwithstanding the first paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall initially be treated as Incurred pursuant to clause (i)(bi) of the definition of "“Permitted Debt," ” and may not later be re-classified and (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(a) the first paragraph of this Section 4.64.9, the Company, in its sole discretion, shall divide and classify, and from time to time may divide and reclassify, all or any portion of such item of Debt.
(f) . The Issuers accrual of interest, the accretion or amortization of accreted value or original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this Section 4.9. The Company and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.
Appears in 2 contracts
Samples: Indenture (Ryerson Holding Corp), Indenture (Ryerson International Material Management Services, Inc.)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any Restricted Subsidiary may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (ai) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified Four Quarter Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 2.0:1.0 and (bii) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Four Quarter Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale Sales, Asset Acquisitions, Investments, mergers, consolidations or acquisition, discontinued operations (as determined in accordance with GAAP) or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, Consolidated Operating EBITDA and Adjusted Consolidated Interest Expense for the Specified Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale Sales, Asset Acquisitions, Investments, mergers, consolidations, discontinued operations or acquisition or designationdesignations, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation events had occurred on the first day of the Specified Four Quarter Period.
(c) If the Debt which that is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to (x) the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and (y) the inclusion inclusion, in EBITDA the Company's Consolidated Operating EBITDA, of the Consolidated Operating EBITDA of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (athe provisions of Section 4.09(a) abovehereof, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) For purposes of determining any particular amount of Debt under this Section 4.64.09, (x) the first $25,000,000 of Debt Incurred outstanding under the Credit Agreement on the Issue Start Date shall at all times be treated as Incurred pursuant to clause (i)(b1) of the definition of "Permitted Debt," and (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.09, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(a4.09(a)(i) of this Section 4.6hereof, the Company, in its sole discretion, shall may classify, and from time to time may reclassify, all or any portion of such item of DebtDebt in any manner such that the item of Debt would be permitted to be incurred at the time of such classification or reclassification, as applicable.
(f) The Issuers accrual of interest or dividends, the accretion of principal, accreted value or liquidation preference, the amortization of original issue discount or debt discount, the payment of interest on Debt in the form of additional Debt, the payment of dividends on Capital Interests in the form of additional shares of Capital Interests with the same terms, the obligation to pay a premium in respect of Debt or a Capital Interest arising in connection with the issuance of a notice of redemption or the making of a mandatory change of control offer or asset sale offer for such Debt or Capital Interest, increases in the amount of Debt outstanding solely as a result of fluctuations in exchange rates or currency values, and unrealized losses or charges in respect of Hedging Obligations or Swap Contracts, in each case will be deemed not to be an Incurrence of Debt or an issuance of Capital Interests for purposes of this Section 4.09.
(g) For purposes of determining compliance with any Guarantor will not Incur U.S. dollar-denominated restriction on the incurrence of Debt or any other covenant, limitation or ratio in this Indenture, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date such Debt was incurred. Notwithstanding any other provision of this Indenture, the maximum amount of Debt that the Company or any Restricted Subsidiary may incur pursuant to its terms is subordinate this Section 4.09 shall not be deemed to be exceeded, nor shall any other covenant, limitation or junior ratio in right this Indenture be deemed to be breached or exceeded solely as a result of payment to any Debt unless such Debt is subordinated fluctuations in right of payment to the Notes and the Note Guarantees to the same extent; provided that exchange rates or currency values.
(h) Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured unsecured, secured with a subset of the collateral securing such other Debt or with different collateral, secured to a greater or lesser extent or secured with greater or lower priority, by virtue of structural subordination, by virtue of maturity date, order of payment or order of application of funds, or by virtue of not being guaranteed by all guarantors of such other Debt, and any subordination in right of payment must be pursuant to a written agreement or instrument.
Appears in 2 contracts
Samples: Indenture (Alliance Data Systems Corp), Indenture (Alliance Data Systems Corp)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, Incur any Debt (including Acquired Debt); provided, unless, that the Company and any of the Guarantors (other than a Guarantor that provides a Limited Guarantee) may Incur any Acquired Debt or any other Debt if:
(1) immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified Four Quarter Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid (other than Debt Incurred under the revolving portion of a Debt Facility) since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 and at least 2.00 to 1.00; and
(b2) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during Notwithstanding the Specified Period or subsequent thereto and prior to the date provisions of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above4.09(a), the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(ec) For purposes of determining any particular amount of Debt under this Section 4.6, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debt. For purposes of determining compliance with this Section 4.64.09, in the event that an item of Debt meets the criteria of more than one of the types categories of Permitted Debt described above (other than Debt referred or is permitted to in clause (x) of the preceding sentence), including be Incurred under Section 4.6(a) of this Section 4.64.09(a), the Company, in its sole discretion, shall classifyclassify or divide, and from time to time may reclassifyreclassify or redivide, all or any portion of such item of Debt in any manner that complies with this Section 4.09, including the definition of “Permitted Debt”; provided that all Debt outstanding on the Issue Date under the Senior Credit Facilities shall be deemed Incurred under clause (1) of the definition of Permitted Debt and not Section 4.09(a) or clause (4) of the definition of Permitted Debt and may not later be reclassified. If obligations in respect of letters of credit are Incurred pursuant to a Debt Facility and relate to other Debt, then such letters of credit shall be treated as Incurred pursuant to clause (1) of the definition of Permitted Debt and such other Debt shall not be included. In addition, except as provided in the preceding sentence of this Section 4.09(c), Guarantees of, or obligations in respect of letters of credit relating to, Debt that is otherwise included in the determination of a particular amount of Debt shall not be included.
(d) For purposes of determining compliance of any non-U.S. dollar-denominated Debt with this Section 4.09, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term Debt, or first committed, in the case of revolving credit Debt; provided, however, that if such Debt is Incurred to refinance other Debt denominated in the same or different 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 Refinancing Debt does not exceed the principal amount of such Debt being refinanced. Notwithstanding any other provision of this Section 4.09, the maximum amount of Debt that the Company may Incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Debt Incurred to refinance other Debt, if Incurred in a different currency from the Debt being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Debt is denominated that is in effect on the date of such refinancing.
(e) The accrual of interest, accrual of dividends, the accretion of accreted value, the amortization of debt discount and the payment of interest on Debt in the form of additional Debt (including the issuance of any PIK Notes (and any increase in the principal amount of the Notes as a result of a PIK Payment) issued from time to time to pay PIK Interest on the Notes) and the payment of dividends on Capital Interests in the form of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt for purposes of this Section 4.09.
(f) The Issuers following shall not be deemed a separate Incurrence of Debt: (1) the obligation to pay a premium in respect of Debt arising in connection with the issuance of a notice of redemption or making a mandatory offer to purchase such Debt and any Guarantor (2) unrealized losses or charges in respect of Hedging Obligations.
(g) The Company will not permit any of its Unrestricted Subsidiaries to Incur any Debt or issue any Redeemable Capital Interests (in each case, other than any Non-Recourse Debt), except as permitted by Section 4.13. If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Debt of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary as of such date (and, if such Debt is not permitted to be Incurred as of such date under this Section 4.09, the Company shall be in Default under this Section 4.09).
(h) The Company will not, and will not permit any Guarantor to, directly or indirectly, Incur any Debt (including Acquired Debt) that pursuant is or purports to be by its terms is subordinate (or by the terms of any agreement governing such Debt) subordinated or junior in right of payment to any other Debt (including Acquired Debt) of the Company or such Guarantor, as the case may be, unless such Debt is expressly subordinated in right of payment to the Notes and or such Guarantor’s Note Guarantee, as the Note Guarantees case may be, to the same extent; provided that extent and in the same manner as such Debt is subordinated to such other Debt of the Company or such Guarantor, as the case may be. For purposes of the foregoing, no Debt will not be considered deemed to be contractually subordinate or junior in right of payment to any other Debt solely by virtue of (1) being unsecured or secured (2) its having a junior priority with respect to a greater or lesser extent or with greater or lower prioritythe same collateral.
Appears in 2 contracts
Samples: Senior Secured Notes Indenture (CIMPRESS PLC), Note and Warrant Purchase Agreement (CIMPRESS PLC)
Limitation on Incurrence of Debt. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable with respect to, contingently or otherwise (collectively, "incur"), any Debt (including Acquired Debt), unless, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, unless (a) the Interest Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be greater than 2.0:1 and (bx) no Default or Event of Default shall have occurred would occur after giving effect on a pro forma basis to such incurrence, and be continuing at (y) the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior Consolidated Debt to EBITDA Ratio on the date of determinationon which such additional Debt is incurred would have been less than 6.0 to 1, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated determined on a pro forma basis giving effect to such Asset Sale incurrence (including a pro forma application of the net proceeds therefrom).
(b) The limitation in Section 3.08(a) shall not prohibit the incurrence of:
(1) performance bonds, appeal bonds, surety bonds, insurance obligations or acquisition bonds and other similar bonds or designationobligations incurred in the ordinary course of business,
(2) Hedging Obligations,
(3) Debt owed by (a) any Restricted Subsidiaries to the Company or to any of the Company's other Subsidiaries or (b) the Company to any of the Company's Subsidiaries,
(4) Debt outstanding on the date of this Indenture, as including the case may beSecurities issued on the Initial Issue Date,
(5) Debt issued in exchange for, or the proceeds of which are used to extend, refinance, renew, replace, or refund (collectively, "Refinance") Debt including, without limitation, Acquired Debt, incurred pursuant to the Consolidated Debt to EBITDA Ratio test set forth above or under clause (4) above or this clause (5) (collectively, "Refinancing Debt"); provided that (A) the principal amount of such Refinancing Debt does not exceed the principal amount of Debt so Refinanced (plus the premiums and other amounts to be paid, and the application of any proceeds therefrom as if such Asset Sale out-of-pocket expenses reasonably incurred, in connection therewith) and (B) the Refinancing Debt has a Weighted Average Life to Maturity that is equal to or acquisition or designation had occurred on greater than the first day Weighted Average Life to Maturity, of the Specified PeriodDebt being Refinanced,
(6) the guarantee by the Company or one or more of its Restricted Subsidiaries of Debt of the Company or one or more of its Restricted Subsidiaries that is not prohibited by another provision of this Indenture, or
(7) other Debt in an aggregate principal amount at any one time outstanding not to exceed $150 million.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired DebtThe Company shall not, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio and shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or not permit any of its Restricted Subsidiaries and the inclusion in EBITDA to, directly or indirectly, incur any guarantee with respect to any Debt of any of the EBITDA Company's Affiliates (other than Debt of the acquired PersonCompany, business, Property one or assets more Subsidiaries of the Company or redesignated Subsidiaryof the Company and one or more of the Company's Subsidiaries).
(d) Notwithstanding paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) For purposes of determining any particular amount of Debt under this This Section 4.6, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date 3.08 shall be treated as Incurred pursuant to clause (i)(b) of no force or effect from and after the definition of "Permitted Debt," (y) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in time the determination of such particular amount shall not be included Securities are first rated at least Baa3 by Moody's and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debt. For purposes of determining compliance with this Section 4.6, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence), including under Section 4.6(a) of this Section 4.6, the Company, in its sole discretion, shall classify, and from time to time may reclassify, such item of Debtat least BBB- by Standard & Poor's.
(f) The Issuers and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.
Appears in 2 contracts
Samples: Indenture (Southern Natural Gas Co), Indenture (Anr Pipeline Co)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any Restricted Subsidiary may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (ai) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified Four Quarter Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 2.0:1.0 and (bii) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Four Quarter Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale Sales, Asset Acquisitions, Investments, mergers, consolidations or acquisition, discontinued operations (as determined in accordance with GAAP) or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, Consolidated Operating EBITDA and Adjusted Consolidated Interest Expense for the Specified Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale Sales, Asset Acquisitions, Investments, mergers, consolidations, discontinued operations or acquisition or designationdesignations, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation events had occurred on the first day of the Specified Four Quarter Period.
(c) If the Debt which that is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to (x) the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and (y) the inclusion inclusion, in EBITDA the Company’s Consolidated Operating EBITDA, of the Consolidated Operating EBITDA of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (athe provisions of Section 4.09(a) abovehereof, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) For purposes of determining any particular amount of Debt under this Section 4.64.09, (x) the first $25,000,000 of Debt Incurred outstanding under the Credit Agreement on the Issue Start Date shall at all times be treated as Incurred pursuant to clause (i)(b1) of the definition of "“Permitted Debt," ” and (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.09, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(a4.09(a)(i) of this Section 4.6hereof, the Company, in its sole discretion, shall may classify, and from time to time may reclassify, all or any portion of such item of DebtDebt in any manner such that the item of Debt would be permitted to be incurred at the time of such classification or reclassification, as applicable.
(f) The Issuers accrual of interest or dividends, the accretion of principal, accreted value or liquidation preference, the amortization of original issue discount or debt discount, the payment of interest on Debt in the form of additional Debt, the payment of dividends on Capital Interests in the form of additional shares of Capital Interests with the same terms, the obligation to pay a premium in respect of Debt or a Capital Interest arising in connection with the issuance of a notice of redemption or the making of a mandatory change of control offer or asset sale offer for such Debt or Capital Interest, increases in the amount of Debt outstanding solely as a result of fluctuations in market value, exchange rates or currency values, and unrealized losses or charges in respect of Hedging Obligations or Swap Contracts, in each case will be deemed not to be an Incurrence of Debt or an issuance of Capital Interests for purposes of this Section 4.09.
(g) For purposes of determining compliance with any Guarantor will not Incur U.S. dollar-denominated restriction on the Incurrence of Debt or any other covenant, limitation or ratio in this Indenture, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred. Notwithstanding any other provision of this Indenture, the maximum amount of Debt that the Company or any Restricted Subsidiary may Incur pursuant to its terms is subordinate this Section 4.09 shall not be deemed to be exceeded, nor shall any other covenant, limitation or junior ratio in right this Indenture be deemed to be breached or exceeded, solely as a result of payment to any Debt unless such Debt is subordinated fluctuations in right of payment to the Notes and the Note Guarantees to the same extent; provided that market value, exchange rates or currency values.
(h) Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured unsecured, secured with a subset of the collateral securing such other Debt or with different collateral, secured to a greater or lesser extent or secured with greater or lower priority, by virtue of structural subordination, by virtue of maturity date, order of payment or order of application of funds, or by virtue of not being guaranteed by all guarantors of such other Debt, and any subordination in right of payment must be pursuant to a written agreement or instrument.
Appears in 2 contracts
Samples: Indenture (Alliance Data Systems Corp), Indenture (Alliance Data Systems Corp)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any Restricted Subsidiary may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified relevant Four Quarter Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 2.0:1.0; provided that the aggregate principal amount of Debt (including Acquired Debt) permitted to be Incurred pursuant to this paragraph by Restricted Subsidiaries that are not Guarantors may not exceed the greater of (i) $75.0 million and (bii) no Default or Event 5.0% of Default shall have occurred and be continuing Total Assets at the any time or as a consequence of the Incurrence of such Debtoutstanding.
(b) If, during the Specified Four Quarter Period or subsequent thereto and on or prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged or shall engage in any Asset Sale or acquisitionother disposition, Asset Acquisition, Investments, mergers, consolidations, discontinued operations (as determined in accordance with GAAP) or incurrence or retirement of Debt or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA Consolidated Cash Flow Available for Fixed Charges and Adjusted Consolidated Interest Expense for the Specified Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition other disposition, Asset Acquisition, Investments, mergers, consolidations, discontinued operations, incurrence or retirement of Debt, or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition other disposition, Asset Acquisition, Investments, mergers, consolidations, discontinued operations, or incurrence or retirement of Debt or designation had occurred on the first day of the Specified Four Quarter Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous concurrent acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to (1) the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and (2) the inclusion inclusion, in EBITDA the Company’s Consolidated Cash Flow Available for Fixed Charges, of the EBITDA Consolidated Cash Flow Available for Fixed Charges of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (athe provisions of Section 4.09(a) abovehereof, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) For purposes of determining any particular amount of Debt under this Section 4.64.09, (x1) the first $25,000,000 of Debt Incurred and outstanding under the Credit Agreement on the Issue Date shall at all times be treated as Incurred pursuant to clause (i)(ba) of the definition of "“Permitted Debt," ” and (y2) Guarantees, Liens Guarantees or obligations with respect to letters of credit in each case supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.09, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(a4.09(a) of this Section 4.6hereof, the Company, in its sole discretion, shall may classify, and from time to time may reclassify, all or any portion of such item of DebtDebt in any manner such that the item of Debt would be permitted to be incurred at the time of such classification or reclassification, as applicable.
(f) The Issuers accrual of interest, the accretion or amortization of original issue discount or accreted value, the accretion of dividends, and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the form of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this Section 4.09.
(g) For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Debt, the U.S. dollar- equivalent principal amount of Debt denominated in a foreign currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date such Debt was incurred. Notwithstanding any other provision of this Section 4.09, the maximum amount of Debt that the Company or any Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.
(h) The Company and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower prioritypriority or by virtue of structural subordination.
Appears in 1 contract
Samples: Indenture (CEB Inc.)
Limitation on Incurrence of Debt. (a) The Company Issuer will not, and will not permit any of its the Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Issuer and any of the Restricted Subsidiaries that is a Guarantor may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company Issuer and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be greater than 2.0:1 2.0:1.0 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above, the Company Issuer and the Restricted Subsidiaries may Incur “Permitted Debt” as follows:
(i) Debt incurred pursuant to, and the issuance or creation of letters of credit and bankers’ acceptances under or in connection with (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the maximum potential liability of the Issuer and its Restricted Subsidiaries thereunder), any Credit Facility in an aggregate principal amount outstanding under this clause (i) at any time not to exceed the greater of (x) $25.0 million and (y) 75% of Consolidated EBITDA of the Issuer and its Restricted Subsidiaries for the Four-Quarter Period most recently ended prior to the date of such Incurrence; provided that with respect to any revolving credit commitments under any Credit Facility, any Debt thereunder will be deemed to be Incurred on the date the Issuer obtains such revolving credit commitments for the purposes of this clause (i) regardless of when any borrowings, repayments or reborrowings under such commitments are made;
(ii) Debt outstanding under the Notes (excluding any Additional Notes) and Guarantees of the Notes and contribution, indemnification and reimbursement obligations owed by the Issuer or any Guarantor to any of the other of them in respect of amounts paid or payable on such Notes;
(iii) Debt of the Issuer or any Restricted Subsidiary outstanding at the time of the Issue Date (other than clauses (i) or (ii) above);
(iv) Debt Incurred following the Issue Date that is owed to and held by the Issuer or a Restricted Subsidiary; provided that if such Debt is owed by the Issuer or a Guarantor to a Restricted Subsidiary that is not a Guarantor, such Debt shall be subordinated to the prior payment in full of the Obligations;
(v) Guarantees Incurred by the Issuer or a Restricted Subsidiary of Debt or other obligations of the Issuer or a Restricted Subsidiary; provided that (a) such Debt is Permitted Debt or is otherwise Incurred in accordance with this Section 4.9 and (b) such Guarantees are subordinated to the Notes to the same extent as the Debt being guaranteed;
(vi) Debt Incurred in respect of workers’ compensation claims, self-insurance obligations, indemnity, bid, performance, warranty, release, appeal, surety and similar bonds, letters of credit for operating purposes and completion guarantees provided or Incurred (including Guarantees thereof) by the Issuer or a Restricted Subsidiary in the ordinary course of business;
(vii) Debt under Hedging Obligations entered into to manage fluctuations in interest rates, commodity prices and currency exchange rates (and not for speculative purposes);
(viii) Debt of the Issuer or any Restricted Subsidiary pursuant to Capital Lease Obligations and Purchase Money Debt; provided that the aggregate principal amount of such Debt outstanding at any time under this clause (viii) may Incur Permitted Debtnot exceed $15.0 million in the aggregate;
(ix) the issuance by any of the Restricted Subsidiaries to the Issuer or to any of the Restricted Subsidiaries of shares of preferred stock; provided, however, that:
(a) any subsequent issuance or transfer of Capital Interests that results in any such preferred stock being held by a Person other than the Issuer or Restricted Subsidiaries; and
(b) any sale or other transfer of any such preferred stock to a Person that is not either the Issuer or a Restricted Subsidiary; shall be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (ix);
(x) Debt arising from (x) customary cash management services and automated clearing house transactions, (y) any Bank Product or (z) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that any such Debt Incurred pursuant to clause (z) is extinguished within five business days of the Incurrence;
(xi) Debt of the Issuer or any Restricted Subsidiary not otherwise permitted pursuant to this definition, in an aggregate principal amount not to exceed $10.0 million at any time outstanding;
(xii) Refinancing Debt in respect of any Debt permitted by clauses (ii) and (iii) above, this clause (xii) or Debt Incurred in accordance with clause (a) of this Section 4.9;
(xiii) Debt of the Issuer or any Restricted Subsidiary consisting of take-or-pay obligations contained in supply arrangements in the ordinary course of business; and
(xiv) Debt consisting of Debt issued by the Issuer or any of its Restricted Subsidiaries to current or former officers, directors, employees and consultants thereof, their respective estates, spouses or former spouses, in each case to finance the purchase or redemption of Equity Interests of the Issuer or any direct or indirect parent company of the Issuer to the extent pursuant to clause (iv) of the second paragraph of Section 4.7.
(ec) For purposes of determining any particular amount of Debt under compliance with this Section 4.64.9, (x) the first $25,000,000 outstanding principal amount of any Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause counted only once such that (i)(bwithout limitation) of the definition of "Permitted Debt," (y) Guarantees, Liens any obligation arising under any Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (zy) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated except as Debt. For purposes of determining compliance with this Section 4.6provided above, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including under Section 4.6(acategories of Permitted Debt and paragraph (a) of this Section 4.64.9, the CompanyIssuer, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
(d) The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the forms of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms and changes in the amount outstanding due solely to the result of fluctuations in the exchange rates of currencies will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this Section 4.9.
(e) Notwithstanding anything to the contrary herein, the maximum amount of Debt that may be outstanding pursuant to this Section 4.9 will not be deemed exceeded due to the results of fluctuations in exchange rates or currency values. For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar equivalent principal amount of Debt denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred.
(f) The Issuers None of the Issuer and any Guarantor Guarantors will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such Debt (including any other Debt, other than Debt Incurred under the revolving portion of a Credit Facility, being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified Four Quarter Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid (other than Debt Incurred under the revolving portion of a Credit Facility) since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 2.25 to 1.00 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) . If, during the Specified Four Quarter Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisitionAsset Acquisition, Investments, mergers, consolidations, discontinued operations (as determined in accordance with GAAP) or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA Consolidated Cash Flow Available for Fixed Charges and Adjusted Consolidated Interest Expense for the Specified Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition Asset Acquisition, Investments, mergers, consolidations, discontinued operations or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition Asset Acquisition or designation had occurred on the first day of the Specified Four Quarter Period.
(c) . If the Debt which is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to (x) the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and (y) the inclusion inclusion, in EBITDA Consolidated Cash Flow Available for Fixed Charges, of the EBITDA Consolidated Cash Flow Available for Fixed Charges of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) . Notwithstanding the first paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall at all times be treated as Incurred pursuant to clause (i)(bi) of the definition of "“Permitted Debt," ” and (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(a) the first paragraph of this Section 4.64.9, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
(f) . For purposes of determining compliance of any non-U.S. dollar-denominated Debt with this Section 4.9, the amount outstanding under U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of the term Debt, or first committed, in the cases of the revolving credit Debt, provided, however, that if such Debt is Incurred to refinance other Debt denominated in the same or different 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 Refinancing Debt does not exceed the principal amount of such indebtedness being refinanced. The Issuers accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this Section 4.9. The Company and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower prioritypriority or by virtue of structural subordination.
Appears in 1 contract
Samples: Indenture (Ashland Inc.)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified PeriodFour-Quarter Period (as defined below), had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four-Quarter Period, and any other Debt repaid since the beginning of the Specified Four-Quarter Period had been repaid at the beginning of the Specified Four-Quarter Period, would be greater than 2.0:1 2.00:1 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If; provided further, during that Restricted Subsidiaries that are not Guarantors may not Incur any Debt pursuant to this paragraph if the Specified Period or subsequent thereto and prior to the date First Lien Secured Leverage Ratio of determination, the Company or any of and its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisitionSubsidiaries, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated determined on a pro forma basis giving effect to as if any such Asset Sale or acquisition or designation, as the case may beDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day beginning of the Specified Period.
Four-Quarter Period (cas defined below) If had been Incurred and the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction proceeds thereof had occurred been applied at the beginning of the Specified Four-Quarter Period) to the Incurrence of such Acquired Debt or such , and any other Debt by repaid since the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA beginning of the EBITDA Four-Quarter Period had been repaid at the beginning of the acquired PersonFour-Quarter Period, business, Property or assets or redesignated Subsidiary.
(d) would be greater than 2.5:1. Notwithstanding paragraph (a) abovethe immediately preceding paragraph, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under this Section 4.6SECTION 4.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.6SECTION 4.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(apart (a) in the first paragraph of this Section 4.6SECTION 4.9, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
(f) The Issuers and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; , provided that Debt Incurred under the Credit Facilities on the Issue Date shall at all times be treated as Incurred pursuant to clause (i) of the definition of “Permitted Debt”. The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be considered subordinate deemed to be an Incurrence of Debt or junior issuance of Capital Interests for purposes of this SECTION 4.9. No Debt will be deemed to be subordinated in right of payment to any other Debt solely by virtue of being unsecured or by virtue of being secured to on a greater or lesser extent or with greater or lower priorityjunior priority basis.
Appears in 1 contract
Samples: Indenture (Triumph Group Inc)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt; provided that the Company or any of its Restricted Subsidiaries may Incur additional Debt (including Acquired Debt), unlessif, immediately after giving pro forma effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Coverage Consolidated Total Debt Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be greater less than 2.0:1 or equal to 4.75 to 1.0 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
; provided further that the amount of Debt (bother than Permitted Debt) If, during the Specified Period or subsequent thereto and prior that may be Incurred by Restricted Subsidiaries that are not Guarantors pursuant to the date of determination, the Company or foregoing shall not exceed $25.0 million at any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on one time outstanding. Notwithstanding the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under compliance with this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(bi) of the definition of "“Permitted Debt," ” and may not later be reclassified and (y) Guarantees, Liens the outstanding principal amount of any Debt shall be counted only once such that (without limitation) any obligation arising under any Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.6covenant, except as provided above, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than in the definition of “Permitted Debt” or Debt referred Incurred pursuant to in clause (x) of the preceding sentence), including under Section 4.6(a) first paragraph of this Section 4.64.9, the Company, in its sole discretion, shall classifymay classify and divide, and from time to time may redivide and reclassify, all or any portion of such item of Debt.
Debt in more than one of the types of Debt described (f) provided that at the time of reclassification or redivision such Debt meets the criteria in such category or categories). The Issuers accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the forms of additional Debt or payment of dividends on Redeemable Capital Interests in the forms of additional shares of Redeemable Capital Interests with the same terms and any Guarantor changes in the amount outstanding due solely to the result of fluctuations in the exchange rates of currencies will not Incur be deemed to be an Incurrence of Debt or issuance of Redeemable Capital Interests for purposes of this Section 4.9. The Company will not and will not permit any Guarantor to, directly or indirectly, incur any Debt that pursuant by to its terms is subordinate (or junior in right by the terms of payment to any Debt unless agreement governing such Debt is Debt) subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt of the Company or of such Guarantor, as the case may be, unless such Debt is also by its terms (or by the terms of any agreement governing such Debt) made expressly subordinate in right of payment to the Notes or the Note Guarantee of such Guarantor, to the same extent and in the same manner as such Debt is subordinated to such other Debt of the Company or such Guarantor, as the case may be. For purposes of the foregoing, no Debt will be deemed to be subordinated in right of payment to any other Debt of the Company or any Guarantor solely by virtue of being unsecured or secured to by a greater Permitted Lien or lesser extent by virtue of the fact that the holders of such Debt have entered into intercreditor agreements or with greater other arrangements giving one or lower prioritymore of such holders priority over the other holders in the collateral held by them or other payments among them.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any Restricted Subsidiary may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (ai) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified Four Quarter Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 2.0:1.0 and (bii) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Four Quarter Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale Sales, Asset Acquisitions, Investments, mergers, consolidations or acquisition, discontinued operations (as determined in accordance with GAAP) or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, Consolidated Operating EBITDA and Adjusted Consolidated Interest Expense for the Specified Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale Sales, Asset Acquisitions, Investments, mergers, consolidations, discontinued operations or acquisition or designationdesignations, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation events had occurred on the first day of the Specified Four Quarter Period.
(c) If the Debt which that is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to (x) the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and (y) the inclusion inclusion, in EBITDA the Company's Consolidated Operating EBITDA, of the Consolidated Operating EBITDA of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (athe provisions of Section 4.09(a) abovehereof, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) For purposes of determining any particular amount of Debt under this Section 4.64.09, (x) the first $25,000,000 of Debt Incurred outstanding under the Credit Agreement on the Issue Start Date shall at all times be treated as Incurred pursuant to clause (i)(b1) of the definition of "Permitted Debt," and (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.09, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(a4.09(a)(i) of this Section 4.6hereof, the Company, in its sole discretion, shall may classify, and from time to time may reclassify, all or any portion of such item of DebtDebt in any manner such that the item of Debt would be permitted to be incurred at the time of such classification or reclassification, as applicable.
(f) The Issuers accrual of interest or dividends, the accretion of principal, accreted value or liquidation preference, the amortization of original issue discount or debt discount, the payment of interest on Debt in the form of additional Debt, the payment of dividends on Capital Interests in the form of additional shares of Capital Interests with the same terms, the obligation to pay a premium in respect of Debt or a Capital Interest arising in connection with the issuance of a notice of redemption or the making of a mandatory change of control offer or asset sale offer for such Debt or Capital Interest, increases in the amount of Debt outstanding solely as a result of fluctuations in market value, exchange rates or currency values, and unrealized losses or charges in respect of Hedging Obligations or Swap Contracts, in each case will be deemed not to be an Incurrence of Debt or an issuance of Capital Interests for purposes of this Section 4.09.
(g) For purposes of determining compliance with any Guarantor will not Incur U.S. dollar-denominated restriction on the Incurrence of Debt or any other covenant, limitation or ratio in this Indenture, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred. Notwithstanding any other provision of this Indenture, the maximum amount of Debt that the Company or any Restricted Subsidiary may Incur pursuant to its terms is subordinate this Section 4.09 shall not be deemed to be exceeded, nor shall any other covenant, limitation or junior ratio in right this Indenture be deemed to be breached or exceeded solely as a result of payment to any Debt unless such Debt is subordinated fluctuations in right of payment to the Notes and the Note Guarantees to the same extent; provided that market value, exchange rates or currency values.
(h) Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured unsecured, secured with a subset of the collateral securing such other Debt or with different collateral, secured to a greater or lesser extent or secured with greater or lower priority, by virtue of structural subordination, by virtue of maturity date, order of payment or order of application of funds, or by virtue of not being guaranteed by all guarantors of such other Debt, and any subordination in right of payment must be pursuant to a written agreement or instrument.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company Stage I Issuer will not, and will not permit any of its the Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Stage I Issuer and any of the Restricted Subsidiaries that is a Guarantor may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company Stage I Issuer and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be greater than 2.0:1 2.0:1.0 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determinationNotwithstanding Section 4.9(a), the Company or any of its Stage I Issuer and the Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, may Incur “Permitted Debt” as the case may befollows:
(i) Debt incurred pursuant to, and the application issuance or creation of any proceeds therefrom as if such Asset Sale letters of credit and bankers’ acceptances under or acquisition or designation had occurred on the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning maximum potential liability of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above, the Company Stage I Issuer and its Restricted Subsidiaries may Incur Permitted Debtthereunder), any Credit Facility in an aggregate principal amount outstanding under this clause (i) at any time not to exceed the greatest of (x) $100,000,000, (y) the Borrowing Base as of the date of such incurrence or (z) an amount such that the ABL Priority Leverage Ratio of the Stage I Issuer and its Restricted Subsidiaries would not exceed 1.75 to 1.00.
(eii) For purposes of determining any particular amount of Debt under this Section 4.6, (x) the first $25,000,000 of Debt Incurred outstanding under the Credit Agreement on Stage I Notes and the Issue Date shall be treated as Incurred pursuant to clause (i)(b) Existing Notes and Guarantees of the definition Stage I Notes and the Existing Notes and contribution, indemnification and reimbursement obligations owed by the Stage I Issuer or any Guarantor to any of "Permitted the other of them in respect of amounts paid or payable on such Stage I Notes and the Existing Notes;
(iii) Debt," (y) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included pension withdrawal liabilities reflected in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debt. For purposes of determining compliance with this Section 4.6, in the event that an item of Debt meets the criteria of more than one most recent consolidated balance sheet of the types Stage I Issuer as of Debt described above June 18, 2013 that subsequently becomes Debt, of the Stage I Issuer or any Restricted Subsidiary outstanding as of June 18, 2013 (other than Debt referred to in clause (xi) or (ii) above), including, without limitation, the 2015 Notes until their repurchase or redemption with the net proceeds of the preceding sentence), including under Section 4.6(a) issuance of this Section 4.6, the Company, in its sole discretion, shall classify, and from time to time may reclassify, such item of Debt.Existing Notes;
(fiv) The Issuers Debt Incurred following June 18, 2013 that is owed to and any Guarantor will not Incur any Debt held by the Stage I Issuer or a Restricted Subsidiary; provided that pursuant to its terms is subordinate or junior in right of payment to any Debt unless if such Debt is owed by the Stage I Issuer or a Guarantor to a Restricted Subsidiary that is not a Guarantor, such Debt shall be subordinated in right of payment to the Notes and prior payment in full of the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.Obligations;
Appears in 1 contract
Samples: First Supplemental Indenture (Jack Cooper Logistics, LLC)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any Restricted Subsidiary may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (ai) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified Four Quarter Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 2.0:1.0 and (bii) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Four Quarter Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale Sales, Asset Acquisitions, Investments, mergers, consolidations or acquisition, discontinued operations (as determined in accordance with GAAP) or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, Consolidated Operating EBITDA and Adjusted Consolidated Interest Expense for the Specified Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale Sales, Asset Acquisitions, Investments, mergers, consolidations, discontinued operations or acquisition or designationdesignations, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation events had occurred on the first day of the Specified Four Quarter Period.
(c) If the Debt which that is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to (x) the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and (y) the inclusion inclusion, in EBITDA the Company's Consolidated Operating EBITDA, of the Consolidated Operating EBITDA of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (athe provisions of Section 4.09(a) abovehereof, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) For purposes of determining any particular amount of Debt under this Section 4.64.09, (x) the first $25,000,000 of Debt Incurred outstanding under the Credit Agreement on the Issue Start Date shall at all times be treated as Incurred pursuant to clause (i)(b1) of the definition of "Permitted Debt," and (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.09, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(a4.09(a)(i) of this Section 4.6hereof, the Company, in its sole discretion, shall may classify, and from time to time may reclassify, all or any portion of such item of DebtDebt in any manner such that the item of Debt would be permitted to be incurred at the time of such classification or reclassification, as applicable.
(f) The Issuers accrual of interest or dividends, the accretion of principal, accreted value or liquidation preference, the amortization of original issue discount or debt discount, the payment of interest on Debt in the form of additional Debt, the payment of dividends on Capital Interests in the form of additional shares of Capital Interests with the same terms, the obligation to pay a premium in respect of Debt or a Capital Interest arising in connection with the issuance of a notice of redemption or the making of a mandatory change of control offer or asset sale offer for such Debt or Capital Interest, increases in the amount of Debt outstanding solely as a result of fluctuations in market value, exchange rates or currency values, and unrealized losses or charges in respect of Hedging Obligations or Swap Contracts, in each case will be deemed not to be an Incurrence of Debt or an issuance of Capital Interests for purposes of this Section 4.09.
(g) For purposes of determining compliance with any Guarantor will not Incur U.S. dollar-denominated restriction on the incurrence of Debt or any other covenant, limitation or ratio in this Indenture, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date such Debt was incurred. Notwithstanding any other provision of this Indenture, the maximum amount of Debt that the Company or any Restricted Subsidiary may incur pursuant to its terms is subordinate this Section 4.09 shall not be deemed to be exceeded, nor shall any other covenant, limitation or junior ratio in right this Indenture be deemed to be breached or exceeded, solely as a result of payment to any Debt unless such Debt is subordinated fluctuations in right of payment to the Notes and the Note Guarantees to the same extent; provided that market value, exchange rates or currency values.
(h) Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured unsecured, secured with a subset of the collateral securing such other Debt or with different collateral, secured to a greater or lesser extent or secured with greater or lower priority, by virtue of structural subordination, by virtue of maturity date, order of payment or order of application of funds, or by virtue of not being guaranteed by all guarantors of such other Debt, and any subordination in right of payment must be pursuant to a written agreement or instrument.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, Incur any Debt (including Acquired Debt); provided, unless, that the Company and any of the Restricted Subsidiaries may Incur any Acquired Debt or any other Debt if:
(1) immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified Four Quarter Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid (other than Debt Incurred under the revolving portion of a Debt Facility) since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 and at least 2.00 to 1.00; and
(b2) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt; provided, further, that the aggregate principal amount of Debt (including Acquired Debt) that may be Incurred by Non-Guarantor Subsidiaries pursuant to this Section 4.09(a) shall not exceed the greater of (x) $50.0 million and (y) 2.0% of Consolidated Total Assets.
(b) If, during Notwithstanding the Specified Period or subsequent thereto and prior to the date provisions of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above4.09(a), the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(ec) For purposes of determining any particular amount of Debt under this Section 4.6, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debt. For purposes of determining compliance with this Section 4.64.09, in the event that an item of Debt (or any portion thereof) meets the criteria of more than one of the types categories of Permitted Debt described above (other than Debt referred or is permitted to in clause (x) of the preceding sentence), including be Incurred under Section 4.6(a) of this Section 4.64.09(a), the Company, in its sole discretion, shall classifyclassify or divide, and from time to time may reclassifyreclassify or redivide, all or any portion of such item of Debt in any manner that complies with this Section 4.09, including the definition of “Permitted Debt;” provided that all Debt outstanding on the Issue Date under the Senior Credit Facilities, and all Debt (or the portion thereof) Incurred under clause (1) of the definition of “Permitted Debt”, shall be deemed Incurred under clause (1) of the definition of “Permitted Debt” and not Section 4.09(a) or clause (4) of the definition of “Permitted Debt” and may not later be reclassified. At the time of Incurrence, the Company will be entitled to divide and classify an item of Debt in more than one of the types of Debt described in Sections 4.09(a) and (b) above. If obligations in respect of letters of credit are Incurred pursuant to a Debt Facility and relate to other Debt, then such letters of credit shall be treated as Incurred pursuant to clause (1) of the definition of “Permitted Debt” and such other Debt shall not be included. In addition, except as provided in the preceding sentence of this Section 4.09(c), Guarantees of, or obligations in respect of letters of credit relating to, Debt that is otherwise included in the determination of a particular amount of Debt shall not be included.
(d) For purposes of determining compliance of any non-U.S. dollar-denominated Debt with this Section 4.09, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term Debt, or first committed, in the case of revolving credit Debt; provided, however, that if such Debt is Incurred to refinance other Debt denominated in the same or different 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 Refinancing Debt does not exceed the principal amount of such Debt being refinanced. Notwithstanding any other provision of this Section 4.09, the maximum amount of Debt that the Company may Incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Debt Incurred to refinance other Debt, if Incurred in a different currency from the Debt being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Debt is denominated that is in effect on the date of such refinancing.
(e) The accrual of interest, accrual of dividends, the accretion of accreted value, the accretion or amortization of debt discount or original issue discount and the payment of interest on Debt in the form of additional Debt and the payment of dividends on Capital Interests in the form of additional shares of Capital Interests (other than Redeemable Capital Interests) will not be deemed to be an Incurrence of Debt for purposes of this Section 4.09.
(f) The Issuers following shall not be deemed a separate Incurrence of Debt: (1) the obligation to pay a premium in respect of Debt arising in connection with the issuance of a notice of redemption or making a mandatory Offer to Purchase such Debt, (2) in the context of the Incurrence of any Refinancing Debt, any additional Debt Incurred to pay premiums (including tender premiums), underwriting discounts, defeasance costs, accrued and unpaid interest, fees and expenses and other costs in connection with such refinancing and (3) unrealized losses or charges in respect of Hedging Obligations.
(g) The Company will not, and will not permit any Guarantor will not to, directly or indirectly, Incur any Debt (including Acquired Debt) that pursuant is or purports to be by its terms is subordinate (or by the terms of any agreement governing such Debt) subordinated or junior in right of payment to any other Debt (including Acquired Debt) of the Company or such Guarantor, as the case may be, unless such Debt is expressly subordinated in right of payment to the Notes and or such Guarantor’s Guarantee, as the Note Guarantees case may be, to the same extent; provided that extent and in the same manner as such Debt is subordinated to such other Debt of the Company or such Guarantor, as the case may be. For purposes of the foregoing, no Debt will not be considered deemed to be contractually subordinate or junior in right of payment to any other Debt solely by virtue of (1) being unsecured or secured (2) its having a junior priority with respect to a greater or lesser extent or with greater or lower prioritythe same collateral.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company Issuer will not, and will not permit any of its the Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Issuer and any of the Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company Issuer and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be greater than 2.0:1 2.0:1.0 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt; provided, further that the aggregate principal amount of Debt that may be Incurred by Restricted Subsidiaries that are not Guarantors pursuant to this paragraph may not exceed $10.0 million in the aggregate.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above, the Company Issuer and the Restricted Subsidiaries may Incur “Permitted Debt” as follows:
(i) Debt incurred pursuant to, and the issuance or creation of letters of credit and bankers’ acceptances under or in connection with (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the maximum potential liability of the Issuer and its Restricted Subsidiaries thereunder), any Credit Facility in an aggregate principal amount outstanding under this clause (i) at any time not to exceed the greater of (x) $55.0 million and (y) 75% of Consolidated EBITDA of the Issuer and its Restricted Subsidiaries for the Four-Quarter Period most recently ended prior to the date of such Incurrence; provided that with respect to any revolving credit commitments under any Credit Facility, any Debt thereunder will be deemed to be Incurred on the date the Issuer obtains such revolving credit commitments for the purposes of this clause (i) regardless of when any borrowings, repayments or reborrowings under such commitments are made;
(ii) Debt outstanding under the Notes (excluding any Additional Notes) and Guarantees of the Notes and contribution, indemnification and reimbursement obligations owed by the Issuer or any Guarantor to any of the other of them in respect of amounts paid or payable on such Notes;
(iii) Debt of the Issuer or any Restricted Subsidiary outstanding at the time of the Issue Date (other than clauses (i) or (ii) above);
(iv) Debt Incurred following the Issue Date that is owed to and held by the Issuer or a Restricted Subsidiary; provided that if such Debt is owed by the Issuer or a Guarantor to a Restricted Subsidiary that is not a Guarantor, such Debt shall be subordinated to the prior payment in full of the Obligations;
(v) Guarantees Incurred by the Issuer or a Restricted Subsidiary of Debt or other obligations of the Issuer or a Restricted Subsidiary; provided that (a) such Debt is Permitted Debt or is otherwise Incurred in accordance with this Section 4.9 and (b) such Guarantees are subordinated to the Notes to the same extent as the Debt being guaranteed;
(vi) Debt Incurred in respect of workers’ compensation claims, self-insurance obligations, indemnity, bid, performance, warranty, release, appeal, surety and similar bonds, letters of credit for operating purposes and completion guarantees provided or Incurred (including Guarantees thereof) by the Issuer or a Restricted Subsidiary in the ordinary course of business;
(vii) Debt under Hedging Obligations entered into to manage fluctuations in interest rates, commodity prices and currency exchange rates (and not for speculative purposes);
(viii) Debt of the Issuer or any Restricted Subsidiary pursuant to Capital Lease Obligations and Purchase Money Debt; provided that the aggregate principal amount of such Debt outstanding at any time under this clause (viii) may Incur Permitted Debtnot exceed $20.0 million in the aggregate;
(ix) the issuance by any of the Restricted Subsidiaries to the Issuer or to any of the Restricted Subsidiaries of shares of preferred stock; provided, however, that:
(a) any subsequent issuance or transfer of Capital Interests that results in any such preferred stock being held by a Person other than the Issuer or Restricted Subsidiaries; and
(b) any sale or other transfer of any such preferred stock to a Person that is not ei-ther the Issuer or a Restricted Subsidiary; shall be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (ix);
(x) Debt arising from (x) customary cash management services and automated clearing house transactions, (y) any Bank Product or (z) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that any such Debt Incurred pursuant to clause (z) is extinguished within five business days of the Incurrence;
(xi) Debt of the Issuer or any Restricted Subsidiary not otherwise permitted pursuant to this definition, in an aggregate principal amount not to exceed $15.0 million at any time outstanding;
(xii) Debt of a Person incurred and outstanding on or prior to the date on which such Person was acquired by the Issuer or any Restricted Subsidiary or consolidated or merged with or into the Issuer or a Restricted Subsidiary in accordance with the terms of the Indenture; provided that such Debt is not incurred in connection with or in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate, such acquisition or merger; and provided, further, that after giving pro forma effect to such incurrence of Debt and such acquisition, consolidation or merger (i) the Issuer would have been permitted to incur at least $1.00 of additional Indebtedness pursuant to clause (a) of this Section 4.9 or (ii) the Consolidated Fixed Charge Coverage Ratio of the Issuer would on a pro forma basis at least be equal to the Consolidated Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction;
(xiii) Refinancing Debt in respect of any Debt permitted by clauses (ii), (iii) and (xii) above, this clause (xiii) or Debt Incurred in accordance with clause (a) of this Section 4.9;
(xiv) Debt of the Issuer or any Restricted Subsidiary consisting of take-or-pay obligations contained in supply arrangements in the ordinary course of business; and
(xv) Debt consisting of Debt issued by the Issuer or any of its Restricted Subsidiaries to current or former officers, directors, employees and consultants thereof, their respective estates, spouses or former spouses, in each case to finance the purchase or redemption of Equity Interests of the Issuer or any direct or indirect parent company of the Issuer to the extent pursuant to clause (iv) of the second paragraph of Section 4.7.
(ec) For purposes of determining any particular amount of Debt under compliance with this Section 4.64.9, (x) the first $25,000,000 outstanding principal amount of any Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause counted only once such that (i)(bwithout limitation) of the definition of "Permitted Debt," (y) Guarantees, Liens any obligation arising under any Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (zy) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated except as Debt. For purposes of determining compliance with this Section 4.6provided above, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including under Section 4.6(acategories of Permitted Debt and paragraph (a) of this Section 4.64.9, the CompanyIssuer, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
(d) The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the forms of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms and changes in the amount outstanding due solely to the result of fluctuations in the exchange rates of currencies will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this Section 4.9.
(e) Notwithstanding anything to the contrary herein, the maximum amount of Debt that may be outstanding pursuant to this Section 4.9 will not be deemed exceeded due to the results of fluctuations in exchange rates or currency values. For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar equivalent principal amount of Debt denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred.
(f) The Issuers None of the Issuer and any Guarantor Guarantors will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company Holdings will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt); provided that Holdings, unlessthe Issuer and any of its Restricted Subsidiaries (other than any Foreign Restricted Subsidiary) may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company Holdings and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such Debt (including any other Debt, other than Debt Incurred under the revolving portion of a Credit Facility, being Incurred contemporaneously) and any other Debt (other than Debt Incurred under the revolving portion of the Credit Facility) Incurred since the beginning of the Specified Period, Four-Quarter Period had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four-Quarter Period, and any other Debt repaid (other than Debt Incurred under the revolving portion of a Credit Facility) since the beginning of the Specified Four-Quarter Period had been repaid at the beginning of the Specified Four-Quarter Period, would be greater than 2.0:1 2.25 to 1.00 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
(c) . If the Debt which is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four-Quarter Period) to (x) the Incurrence of such Acquired Debt or such other Debt by the Company Holdings or any of its Restricted Subsidiaries and (y) the inclusion inclusion, in EBITDA Consolidated Cash Flow Available for Fixed Charges, of the EBITDA Consolidated Cash Flow Availa- ble for Fixed Charges of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) . Notwithstanding the first paragraph (a) above, the Company Holdings and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred outstanding under the Credit Agreement on the Issue Date shall at all times be treated as Incurred pursuant to clause (i)(ba) of the definition of "“Permitted Debt," ” and (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(apart (a) in the first paragraph of this Section 4.64.9, the CompanyIssuer, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
(f) The Issuers and . For purposes of determining compliance of any Guarantor will not Incur any non-U.S. dollar-denominated Debt with this Section 4.9, the amount outstanding under U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of the term Debt, or first committed, in the cases of the revolving credit Debt, provided, however, that pursuant to its terms is subordinate or junior in right of payment to any Debt unless if such Debt is subordinated Incurred to Refinance other Debt denominated in right the same or different 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 payment such Refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the Notes principal amount of such Refinancing Debt does not exceed the principal amount of such indebtedness being Refinanced. The accrual of interest, the accretion or amortization of original issue discount and the Note Guarantees to payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same extent; provided that Debt terms will not be considered subordinate deemed to be an Incurrence of Debt or junior in right issuance of payment to any other Debt solely by virtue Capital Interests for purposes of being unsecured or secured to a greater or lesser extent or with greater or lower prioritythis Section 4.9.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) therefrom the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified PeriodFour Quarter Period (as defined below) (other than any Debt Incurred under the revolving portion of a credit agreement), had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) 2.0:1. If, during the Specified Four Quarter Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisitionAsset Acquisition, Investments, mergers, consolidations, discontinued operations (as determined in accordance with GAAP) or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA Consolidated Cash Flow Available for Fixed Charges and Adjusted Consolidated Interest Expense for the Specified Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition Asset Acquisition, Investments, mergers, consolidations, discontinued operations or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition Asset Acquisition or designation had occurred on the first day of the Specified Four Quarter Period.
(c) . If the Debt which is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion inclusion, in EBITDA Consolidated Cash Flow Available for Fixed Charges, of the EBITDA Consolidated Cash Flow Available for Fixed Charges of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) . Notwithstanding the first paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall initially be treated as Incurred pursuant to clause (i)(bi) of the definition of "“Permitted Debt," ” and may not later be re-classified and (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(a) the first paragraph of this Section 4.64.9, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
(f) . The Issuers accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this Section 4.9. The Company and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.
Appears in 1 contract
Samples: Indenture (PNA Group Holding CORP)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, Incur any Debt (including Acquired Debt); provided, unless, that the Company and any of the Guarantors may Incur any Acquired Debt or any other Debt if:
(1) immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified Four Quarter Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid (other than Debt Incurred under the revolving portion of a Debt Facility) since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 and at least 2.00 to 1.00; and
(b2) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during Notwithstanding the Specified Period or subsequent thereto and prior to the date provisions of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above4.09(a), the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(ec) For purposes of determining any particular amount of Debt under this Section 4.6, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debt. For purposes of determining compliance with this Section 4.64.09, in the event that an item of Debt (or any portion thereof) meets the criteria of more than one of the types categories of Permitted Debt described above (other than Debt referred or is permitted to in clause (x) of the preceding sentence), including be Incurred under Section 4.6(a) of this Section 4.64.09(a), the Company, in its sole discretion, shall classifyclassify or divide, and from time to time may reclassifyreclassify or redivide, all or any portion of such item of Debt in any manner that complies with this Section 4.09, including the definition of “Permitted Debt”; provided that all Debt outstanding on the Issue Date under the Senior Credit Facilities, and all Debt (or the portion thereof) Incurred under clause (1) of the definition of “Permitted Debt”, shall be deemed Incurred under clause (1) of the definition of “Permitted Debt” and not Section 4.09(a) or clause (4) of the definition of “Permitted Debt” and may not later be reclassified. At the time of Incurrence, the Company will be entitled to divide and classify an item of Debt in more than one of the types of Debt described in Sections 4.09(a) and (b) above. If obligations in respect of letters of credit are Incurred pursuant to a Debt Facility and relate to other Debt, then such letters of credit shall be treated as Incurred pursuant to clause (1) of the definition of “Permitted Debt” and such other Debt shall not be included. In addition, except as provided in the preceding sentence of this Section 4.09(c), Guarantees of, or obligations in respect of letters of credit relating to, Debt that is otherwise included in the determination of a particular amount of Debt shall not be included.
(d) For purposes of determining compliance of any non-U.S. dollar-denominated Debt with this Section 4.09, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term Debt, or first committed, in the case of revolving credit Debt; provided, however, that if such Debt is Incurred to refinance other Debt denominated in the same or different 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 Refinancing Debt does not exceed the principal amount of such Debt being refinanced. Notwithstanding any other provision of this Section 4.09, the maximum amount of Debt that the Company may Incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Debt Incurred to refinance other Debt, if Incurred in a different currency from the Debt being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Debt is denominated that is in effect on the date of such refinancing.
(e) The accrual of interest, accrual of dividends, the accretion of accreted value, the accretion or amortization of debt discount or original issue discount and the payment of interest on Debt in the form of additional Debt and the payment of dividends on Capital Interests in the form of additional shares of Capital Interests (other than Redeemable Capital Interests) will not be deemed to be an Incurrence of Debt for purposes of this Section 4.09.
(f) The Issuers following shall not be deemed a separate Incurrence of Debt: (1) the obligation to pay a premium in respect of Debt arising in connection with the issuance of a notice of redemption or making a mandatory offer to purchase such Debt, (2) in the context of the Incurrence of any Refinancing Debt, any additional Debt Incurred to pay premiums (including tender premiums), underwriting discounts, defeasance costs, accrued and unpaid interest, fees and expenses and other costs in connection with such refinancing and (3) unrealized losses or charges in respect of Hedging Obligations.
(g) The Company will not, and will not permit any Guarantor will not to, directly or indirectly, Incur any Debt (including Acquired Debt) that pursuant is or purports to be by its terms is subordinate (or by the terms of any agreement governing such Debt) subordinated or junior in right of payment to any other Debt (including Acquired Debt) of the Company or such Guarantor, as the case may be, unless such Debt is expressly subordinated in right of payment to the Notes and or such Guarantor’s Guarantee, as the Note Guarantees case may be, to the same extent; provided that extent and in the same manner as such Debt is subordinated to such other Debt of the Company or such Guarantor, as the case may be. For purposes of the foregoing, no Debt will not be considered deemed to be contractually subordinate or junior in right of payment to any other Debt solely by virtue of (1) being unsecured or secured (2) its having a junior priority with respect to a greater or lesser extent or with greater or lower prioritythe same collateral.
Appears in 1 contract
Samples: Senior Notes Indenture (Schweitzer Mauduit International Inc)
Limitation on Incurrence of Debt. (a) The Company Parent will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that Parent and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company Parent and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified PeriodFour Quarter Period (as defined below) (provided that any Debt Incurred under the revolving portion of a credit agreement shall be calculated (x) on an annualized basis for periods prior to the one year anniversary of the Issue Date and (y) thereafter, only on such date), had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 and (b) no Default is at least 2.00:1.00; provided further, that the aggregate principal amount of Debt Incurred by Restricted Subsidiaries that are not the Issuer or Event of Default Guarantors pursuant to this paragraph shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) not exceed $50.0 million. If, during the Specified Four Quarter Period or subsequent thereto and prior to the date of determination, the Company Parent or any of its Restricted Subsidiaries shall have engaged in any Asset Sale asset sale or asset acquisition, investments, mergers, consolidations, discontinued operations (as determined in accordance with GAAP) or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA Consolidated Cash Flow Available for Fixed Charges and Adjusted Consolidated Interest Expense for the Specified Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale asset sale or acquisition asset acquisition, investments, mergers, consolidations, discontinued operations or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition Asset Acquisition or designation had occurred on the first day of the Specified Four Quarter Period.
(c) . If the Debt which that is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to the Incurrence of such Acquired Debt or such other Debt by the Company Parent or any of its Restricted Subsidiaries and the inclusion inclusion, in EBITDA Consolidated Cash Flow Available for Fixed Charges, of the EBITDA Consolidated Cash Flow Available for Fixed Charges of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) . Notwithstanding the first paragraph (a) above, the Company Parent and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall initially be treated as Incurred pursuant to clause (i)(bi) of the definition of "“Permitted Debt," ” and may not later be re-classified and (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(a) the first paragraph of this Section 4.64.9, the CompanyParent, in its sole discretion, shall divide and classify, and from time to time may divide and reclassify, all or any portion of such item of Debt.
(f) . Parent will not, and will not permit any of its Restricted Subsidiaries to, redeem, defease, repurchase, repay, acquire or retire for value any of the Senior Unsecured Notes out of the proceeds of a substantially concurrent incurrence of Debt representing ABL Obligations or any other Pari Passu Lien Obligations; provided that Parent or any of its Restricted Subsidiaries may utilize Permitted Additional Note Obligations for such purpose after the 12 month anniversary of the Issue Date. The Issuers accrual of interest, the accretion or amortization of accreted value or original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this Section 4.9. The Issuer and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.
Appears in 1 contract
Samples: Indenture (Ryerson Holding Corp)
Limitation on Incurrence of Debt. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless) and will not permit any Restricted Subsidiary to issue Preferred Interests; provided that the Issuer and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) and Restricted Subsidiaries may issue Preferred Interests if, immediately after giving effect to the Incurrence of such Debt or issue of Preferred Interests and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company Issuer and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such Debt or Preferred Interests (including any other Debt, other than Debt or Preferred Interests Incurred under the revolving portion of a Credit Facility, being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified Period, Four Quarter Period had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid (other than Debt Incurred under the revolving portion of a Credit Facility) since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 2.00 to 1.00; provided, however, that the amount of Debt Incurred and (b) no Default or Event of Default Preferred Interests that may be issued pursuant to the foregoing by Restricted Subsidiaries that are not Guarantors shall have occurred and be continuing not at the any one time or as a consequence of the Incurrence of such Debt.
(b) outstanding exceed $50.0 million. If, during the Specified Four Quarter Period or subsequent thereto and prior to the date of determination, the Company Issuer or any of its Restricted Subsidiaries Subsidiaries, or any Person that subsequently became a Restricted Subsidiary or was merged with or into the Issuer or any of its Restricted Subsidiaries, shall have engaged in any Asset Sale or acquisitionAsset Acquisition, Investments, mergers, consolidations or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA Consolidated Cash Flow Available for Fixed Charges and Adjusted Consolidated Interest Expense for the Specified Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition Asset Acquisition, Investments, mergers, consolidations or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition Asset Acquisition, Investments, mergers, consolidations or designation had occurred on the first day of the Specified Four Quarter Period.
(c) . If the Debt or Preferred Interests which is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt or Preferred Interests Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt or Preferred Interests of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to (x) the Incurrence of such Acquired Debt or such other Debt or Preferred Interests by the Company Issuer or any of its Restricted Subsidiaries and (y) the inclusion inclusion, in EBITDA Consolidated Cash Flow Available for Fixed Charges, of the EBITDA Consolidated Cash Flow Available for Fixed Charges of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) . Notwithstanding the first paragraph (a) above, the Company Issuer and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt compliance under this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement and outstanding on the Issue Escrow Release Date shall at all times be treated as Incurred pursuant to clause (i)(bi) of the definition of "“Permitted Debt," ” and (y) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) included. For purposes of determining any Liens granted particular amount of Debt under this “Limitation on Incurrence of Debt” covenant, if obligations in respect of letters of credit are Incurred pursuant to the equal Credit Facilities and ratable provisions referred are being treated as Incurred pursuant to in Section 4.11 clause (i) of the definition of Permitted Debt and the letters of credit relate to other Debt, then such other Debt shall not be treated as Debtdeemed to have been Incurred. For purposes of determining compliance with this Section 4.64.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above above, including categories of Permitted Debt and under part (other than Debt referred to in clause (xa) of the preceding sentence), including under Section 4.6(a) of first paragraph in this Section 4.64.9, the CompanyIssuer, in its sole discretion, shall classifymay classify and divide, and from time to time may reclassifyreclassify and redivide, all or any portion of such item of Debt.
, except as set forth in clause (fx) in the first sentence of this paragraph. For purposes of determining compliance of any non-U.S. dollar-denominated Debt with this Section 4.9, the amount outstanding under U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of the term Debt, or first committed, in the cases of the revolving credit Debt; provided, however, that if such Debt is Incurred to refinance other Debt denominated in the same or different 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 Refinancing Debt does not exceed the principal amount of such Debt being refinanced. The Issuers Issuer and any Guarantor will not Incur any Debt that pursuant to its terms is contractually subordinate or junior in right of payment to any Debt unless such Debt is contractually subordinated in right of payment to the Notes and the applicable Note Guarantees Guarantee to the same extent; provided that Debt will not be considered contractually subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower prioritypriority or by virtue of structural subordination.
Appears in 1 contract
Samples: Indenture (Schulman a Inc)
Limitation on Incurrence of Debt. (a) The Company will Tembec Inc. shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any Guarantor may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, Tembec Inc. would be greater than 2.0:1 2.25 to 1.0 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on . Notwithstanding the first day paragraph of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt4.9, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above, the Company Tembec Inc. and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under compliance with this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular the amount of Debt shall not be included and (zy) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debt. For purposes of determining compliance with this Section 4.6, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x1) of the preceding sentence), including under Section 4.6(a) categories of Permitted Debt and/or would have been permitted to have been Incurred pursuant to the first paragraph of this Section 4.64.9, the Company, in its sole discretion, shall may classify, and from time to time may reclassify, all or any portion of such item of Debt as being within one or more of such categories or as being Debt permitted to be Incurred pursuant to the first paragraph of this Section 4.9. The accrual of interest and dividends, the accretion of accreted value, the amortization of original issue discount, the payment of interest on any Debt in the form of additional Debt.
(f) The Issuers , the payment of dividends on Equity Interests in the forms of additional shares of Equity Interests with the same terms, and changes to amounts outstanding in respect of Hedging Obligations solely as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder will not be deemed to be an Incurrence of Debt. Any increase in the United States dollar equivalent of outstanding Debt of Tembec Inc. or any of its Restricted Subsidiaries denominated in a currency other than United States dollars resulting from fluctuations in the exchange values of currencies will not be considered to be an Incurrence of Debt for purposes of this Section 4.9; provided that the amount of Debt of Tembec Inc. and its Restricted Subsidiaries outstanding at any time for purposes of covenant compliance will be the United States dollar equivalent of all such Debt of Tembec Inc. and its Restricted Subsidiaries outstanding at such time. Tembec Inc. will not, and will not permit the Company or any Guarantor will not Incur to incur, any Debt that pursuant to its terms is subordinate or junior in right of payment to any other Debt of Tembec Inc., the Company or such Guarantor, unless such Debt is also subordinated in right of payment to the Notes and or the Note Guarantees to Guarantee of such Guarantor, as the same extentcase may be, on substantially identical terms; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or by virtue of being secured to on a greater junior lien or lesser extent or with greater or lower prioritypriority basis.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable with respect to, contingently or otherwise (collectively, “incur”), any Debt (including Acquired Debt), unless, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, unless (a) the Interest Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be greater than 2.0:1 and (bx) no Default or Event of Default shall have occurred would occur after giving effect on a pro forma basis to such incurrence, and be continuing at (y) the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior Consolidated Debt to EBITDA Ratio on the date of determinationon which such additional Debt is incurred would have been less than 6.0 to 1, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated determined on a pro forma basis giving effect to such Asset Sale incurrence (including a pro forma application of the net proceeds therefrom).
(b) The limitation in Section 3.08(a) shall not prohibit the incurrence of:
(i) performance bonds, appeal bonds, surety bonds, insurance obligations or acquisition bonds and other similar bonds or designationobligations incurred in the ordinary course of business;
(ii) Hedging Obligations;
(iii) Debt owed by (1) any Restricted Subsidiaries to the Company or to any of the Company’s other Subsidiaries or (2) the Company to any of the Company’s Subsidiaries;
(iv) Debt outstanding on the date of this Indenture, as including the case may beSecurities issued on the Initial Issue Date and Debt in connection with, related to or arising from El Paso’s $3 Billion Facility and any Refinancing thereof and/or El Paso’s Other Financings and any Refinancing thereof; provided, however, that the Company shall not incur any Debt jointly and severally with El Paso in connection with a Refinancing of El Paso’s $3 Billion Facility subsequent to the date that is the later of (1) August 19, 2003 and (2) the date on which the Company is no longer jointly and severally liable for any amounts outstanding under El Paso’s $3 Billion Facility;
(v) Debt issued in exchange for, or the proceeds of which are used to Refinance Debt including, without limitation, Acquired Debt, incurred pursuant to the Consolidated Debt to EBITDA Ratio set forth above or under clause (iv) above or this clause (v) (collectively, “Refinancing Debt”); provided that (1) the principal amount of such Refinancing Debt does not exceed the principal amount of Debt so Refinanced (plus the premiums and other amounts to be paid, and the application of any proceeds therefrom as if such Asset Sale out-of-pocket expenses reasonably incurred, in connection therewith) and (2) the Refinancing Debt has a Weighted Average Life to Maturity that is equal to or acquisition or designation had occurred on greater than the first day Weighted Average Life to Maturity of the Specified Period.Debt being Refinanced;
(cvi) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt guarantee by the Company or one or more of its Restricted Subsidiaries of Debt of the Company or one or more of its Restricted Subsidiaries that is not prohibited by another provision of this Indenture; or
(vii) other Debt in an aggregate principal amount at any one time outstanding not to exceed $150 million.
(i) The Company shall not, directly or indirectly, incur any guarantee with respect to any Debt of any of its Affiliates (other than Debt of the Company, one or more Subsidiaries of the Company or of the Company and one or more of its Subsidiaries) and (ii) the Company shall not permit any of its Restricted Subsidiaries and the inclusion in EBITDA to, directly or indirectly, incur any guarantee with respect to any Debt of any of the EBITDA Company’s Affiliates (other than Debt of the acquired PersonCompany, businessone or more Subsidiaries of the Company, Property of the Company and one or assets more of its Subsidiaries, Debt in connection with, related to or redesignated Subsidiaryarising from El Paso’s $3 Billion Facility and any Refinancing thereof, or Debt outstanding on the date hereof in connection with El Paso’s Other Financings and any Refinancing thereof).
(d) Notwithstanding paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) For purposes of determining any particular amount of Debt under this This Section 4.6, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date 3.08 shall be treated as Incurred pursuant to clause (i)(b) of no force or effect from and after the definition of "Permitted Debt," (y) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in time the determination of such particular amount shall not be included Securities are first rated at least Baa3 by Moody’s and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debt. For purposes of determining compliance with this Section 4.6, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence), including under Section 4.6(a) of this Section 4.6, the Company, in its sole discretion, shall classify, and from time to time may reclassify, such item of Debtat least BBB- by Standard & Poor’s.
(f) The Issuers and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.
Appears in 1 contract
Samples: Indenture (El Paso Natural Gas Co)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously, other than Debt Incurred under the revolving portion of a Credit Facility), and any other Debt Incurred since the beginning of the Specified PeriodFour Quarter Period (other than Debt Incurred under the revolving portion of a Credit Facility), had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid (other than Debt Incurred under the revolving portion of a Credit Facility) since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 2.00 to 1.00 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) . If, during the Specified Four Quarter Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisitionAsset Acquisition, Investment, merger, consolidation, discontinued operation (as determined in accordance with GAAP) or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA Consolidated Cash Flow Available for Fixed Charges and Adjusted Consolidated Interest Expense for the Specified Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition Asset Acquisition, Investment, merger, consolidation, discontinued operation or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition Asset Acquisition, Investment, merger, consolidation, discontinued operation or designation had occurred on the first day of the Specified Four Quarter Period.
(c) . If the Debt which is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous substantially contemporaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to (x) the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and (y) the inclusion inclusion, in EBITDA Consolidated Cash Flow Available for Fixed Charges, of the EBITDA Consolidated Cash Flow Available for Fixed Charges of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) . Notwithstanding the first paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than above, including categories of Permitted Debt referred to in and under clause (xa) of the preceding sentence), including under Section 4.6(a) first paragraph of this Section 4.64.9, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
(f) . For purposes of determining compliance of any non-U.S. dollar-denominated Debt with this Section 4.9, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term Debt, or first committed, in the case of revolving credit Debt, provided, however, that if such Debt is Incurred to refinance other Debt denominated in the same or different 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 refinancing Debt does not exceed the principal amount of such indebtedness being refinanced. The Issuers accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt for purposes of this Section 4.9. The Company and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower prioritypriority or by virtue of structural subordination.
Appears in 1 contract
Samples: Indenture (Oshkosh Corp)
Limitation on Incurrence of Debt. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt, and the Issuer will not permit any of its Restricted Subsidiaries to issue any Preferred Interests; provided, that the Issuer and any of its Restricted Subsidiaries may Incur any Debt (including Acquired Debt)and any Restricted Subsidiary may issue Preferred Interests, unlessin each case, if, immediately after giving effect to the Incurrence of such Debt or issuance of such Preferred Interests and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company Issuer and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such DebtDebt or any Preferred Interests (including any other Debt or Preferred Interests being Incurred or issued contemporaneously), and any other Debt or Preferred Interests Incurred or issued since the beginning of the Specified Four Quarter Period, had been Incurred or issued, as the case may be and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, ) would be greater than 2.0:1 at least 2.00 to 1.00 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.. Notwithstanding the previous paragraph, the Issuer and its Restricted Subsidiaries may Incur the following items of Debt (“Permitted Debt”):
(b1) IfDebt Incurred pursuant to any Credit Facilities in an aggregate principal amount outstanding not to exceed, during the Specified Period or subsequent thereto and prior to the as of any date of determinationincurrence, the Company greater of $2.5 billion and an amount of Debt such that at the time of Incurrence and after giving pro forma effect thereto, the Consolidated Secured Leverage Ratio of the Issuer would be no greater than 3.0:1.0;
(2) Debt under the Notes issued on the Issue Date;
(3) Guarantees of the Notes issued on the Issue Date;
(4) Debt of the Issuer or any Restricted Subsidiary outstanding on the Issue Date (other than pursuant to clause (1), (2) or (3) above);
(5) the incurrence by the Issuer or any of its Restricted Subsidiaries shall have engaged of intercompany Debt between or among the Issuer and any of its Restricted Subsidiaries; provided, however, that: (i) any subsequent issuance or transfer of equity interests that results in any Asset Sale such Debt being held by a Person other than the Issuer or acquisition, or shall have designated any a Restricted Subsidiary of the Issuer and (ii) any sale or other transfer of any such Debt to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Person that is neither the Issuer nor a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for will be deemed, in each case, to constitute an incurrence of such Debt by the Specified Period shall be calculated on a pro forma basis giving effect to Issuer or such Asset Sale or acquisition or designationRestricted Subsidiary, as the case may be, that was not permitted by this clause (5); provided that if the Issuer or any Guarantor is the obligor on such Debt and the application payee is not the Issuer or a Guarantor, such Debt must be unsecured and expressly subordinated to the prior payment in full in cash of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on all Obligations then due with respect to the first day Notes, in the case of the Specified Period.Issuer, or the guarantee of the Notes, in the case of a Guarantor, except that such subordination requirement shall not be applicable to any such Debt of the Issuer or a Guarantor that is Incurred in the ordinary course of business;
(6) Guarantees by the Issuer or any Restricted Subsidiary of Debt of the Issuer or any Restricted Subsidiary; provided that (a) such Debt is Permitted Debt or is otherwise Incurred in accordance with this Section 4.11, (b) if the Debt being guaranteed is subordinated to the Notes, such Guarantees are subordinated to the Notes to the same extent as the Debt being guaranteed and (c) in the case of any such Guarantee by a Restricted Subsidiary that is not a Guarantor, such guarantee is incurred in accordance with Section 4.10 herein;
(7) Debt Incurred in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance and self-insurance obligations, and, for the avoidance of doubt, indemnity, bid, performance, warranty, release, appeal, surety and similar bonds, letters of credit for operating purposes and completion guarantees provided or Incurred (including Guarantees thereof) by the Issuer or a Restricted Subsidiary in the ordinary course of business;
(8) Debt under Hedging Obligations;
(9) Debt of the Issuer or any Restricted Subsidiary pursuant to Capital Lease Obligations, Synthetic Lease Obligations or Purchase Money Debt; provided that in each case (i) such Debt is incurred by such Person at the time of, or not later than 120 days after, the acquisition, construction, development or improvement by such Person of the property so financed and (ii) such Debt does not exceed the purchase price of the property (or the cost of constructing, developing or improving the same) so financed;
(10) Debt arising from agreements of the Issuer or a Restricted Subsidiary providing for indemnification, contribution, earnout, adjustment of purchase price or similar obligations, in each case, Incurred or assumed in connection with the acquisition or disposition of any business, assets or Capital Interests of a Restricted Subsidiary otherwise permitted under this Indenture;
(11) the issuance by any of the Issuer’s Restricted Subsidiaries to the Issuer or to any of its Restricted Subsidiaries of shares of Preferred Interests; provided, however, that: (a) any subsequent issuance or transfer of Capital Interests that results in any such Preferred Interests being held by a Person other than the Issuer or a Restricted Subsidiary; and (b) any sale or other transfer of any such Preferred Interests to a Person that is not either the Issuer or a Restricted Subsidiary; shall be deemed, in each case, to constitute an issuance of such Preferred Interests by such Restricted Subsidiary that was not permitted by this clause (11);
(12) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Debt is extinguished within five business days of Incurrence and Debt arising from negative account balances in cash pooling arrangements arising in the ordinary course of business;
(13) obligations of the Issuer or its Restricted Subsidiaries in respect of customer advances received and held in the ordinary course of business;
(14) Debt constituting credit support for third party customer financing in the ordinary course of business;
(15) obligations in respect of performance, bid, appeal and surety bonds, and performance and completion guaranties (or bank guaranties or letters of credit in lieu thereof) entered into in the ordinary course of business, including those Incurred to secure health, safety and environmental obligations in the ordinary course of business;
(16) Debt of the Issuer or any Restricted Subsidiary in an aggregate principal amount, including all Permitted Refinancing Debt Incurred to renew, refund, refinance, replace, defease or discharge any Debt Incurred pursuant to this clause (16), not to exceed at the time of incurrence the greater of $500.0 million and 8.0% of the Consolidated Total Assets of the Issuer and its Restricted Subsidiaries;
(17) the Incurrence by the Issuer or any of its Restricted Subsidiaries of Permitted Refinancing Debt in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Debt (other than intercompany Debt) that was permitted by this Indenture to be Incurred under the first paragraph of this Section 4.11 or clauses (2), (3), (4), (9), (16), and (18) and this clause (17) of this paragraph;
(18) the Incurrence of Acquired Debt; provided that after giving effect to such acquisition or merger, either (x)(i) the Issuer would be permitted to Incur at least $1.00 of additional Debt under the first paragraph of this covenant or (ii) the Consolidated Fixed Charge Coverage Ratio of the Issuer and the Restricted Subsidiaries is equal to or greater than immediately prior to such acquisition or merger or (y) such Debt or Preferred Interests (a) is not Secured Debt and, if constituting Debt, is subordinated in right of payment to the Notes and the guarantees of the Notes, (b) is not incurred while a Default exists and no Default shall result therefrom, (c) does not mature and does not require any payment of principal prior to the final maturity of the Notes, and (d) is not incurred in contemplation of such acquisition or merger;
(19) Debt of the Issuer or any Restricted Subsidiary of the Issuer supported by a letter of credit or bank guarantee issued pursuant to Credit Facilities in a principal amount not in excess of the stated amount of such letter of credit;
(20) Debt consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business; and
(21) Debt incurred by a Receivables Subsidiary in a Receivables Facility that is not recourse to the Issuer or any Restricted Subsidiary of the Issuer other than a Receivables Subsidiary (except for Standard Securitization Undertakings). Notwithstanding the above, Restricted Subsidiaries that are not Guarantors may not incur Debt or issue Preferred Interests pursuant to the first paragraph of this Section 4.11 or clause (1), (16) or (18) (but only with respect to Debt incurred in contemplation of an acquisition) of the definition of “Permitted Debt”, including in each case Permitted Refinancing Debt thereof, if such incurrence would result in the aggregate outstanding amount of Debt or Preferred Interests of Restricted Subsidiaries that are not Guarantors Incurred pursuant to such specified provisions of this Section 4.11 or the definition of “Permitted Debt”, at any time of incurrence thereunder, exceeding the greater of $500.0 million and 8.0% of Consolidated Total Assets (the “Non-Guarantor Debt Basket”), provided that, notwithstanding the foregoing, Restricted Subsidiaries that are not Guarantors may incur Debt or issue Preferred Interests pursuant to such specified provisions of this covenant and the definition of “Permitted Debt” in amounts that result in exceeding the available amount of the Non-Guarantor Debt Basket, but such excess amounts shall be deemed to constitute Secured Debt secured by Liens incurred pursuant to clause (2) or (27) (at the Issuer’s election) of the definition of “Permitted Liens” and shall not be permitted to be incurred to the extent such incurrence would result in the limitations in those clauses of “Permitted Liens” being exceeded. If the Debt which is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous substantially contemporaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basisbasis consistent with the definition of Pro Forma Cost Savings set forth herein, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to (x) the Incurrence of such Acquired Debt or such other Debt by the Company Issuer or any of its Restricted Subsidiaries and (y) the inclusion inclusion, in EBITDA Consolidated Cash Flow, of the EBITDA Consolidated Cash Flow of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under this Section 4.64.11, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.11, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(a) the first paragraph of this Section 4.64.11, the CompanyIssuer, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
. For purposes of determining compliance of any non-U.S. dollar-denominated Debt with any U.S. dollar-denominated restriction on the Incurrence of Debt in this Section 4.11, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred (f) or the date such Debt was first committed, in the case of revolving credit Debt for which the relevant commitment is denominated in a foreign currency); provided, however, that if any such Debt that is denominated in a foreign currency is subject at the time of such Incurrence to a currency hedging agreement with respect to U.S. dollars covering principal payable on such Debt, the principal amount of such Debt expressed in U.S. dollars will be adjusted to take into account the effect of such agreement; provided, further, that if such Debt is Incurred to refinance other Debt denominated in the same or different 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 refinancing Debt does not exceed the principal amount of such indebtedness being refinanced. The Issuers accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt for purposes of this covenant. The Issuer and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees guarantees of the Notes at least to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower prioritypriority or by virtue of structural subordination. Debt under Credit Facilities outstanding on the date on which the Notes are first issued and authenticated under this Indenture will initially be deemed to have been Incurred on such date in reliance on the exception provided by clause (1) of the definition of Permitted Debt.
Appears in 1 contract
Samples: Indenture (Colfax CORP)
Limitation on Incurrence of Debt. (a) The Company will notmay not Incur, and will may not permit any of its Restricted Subsidiaries toto Incur, Incur any Debt (including Acquired Debt); PROVIDED, unlessHOWEVER, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, that (a) the Interest Coverage Ratio Company may Incur any Debt and (b) the Company may permit a Subsidiary to Incur Acquired Debt, if, in either case, immediately thereafter the ratio of (A) the aggregate principal amount of Debt of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at outstanding as of the date of determination such Incurrence to (B) Pro Forma Consolidated Cash Flow for the "Specified Period")most recently ended full fiscal quarter multiplied by four, determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Periodsuch fiscal quarter, would be less than 6.0 to 1 but greater than 2.0:1 and zero. Notwithstanding the foregoing limitation, the Company may Incur and, as applicable, may permit its Subsidiaries to Incur, without duplication, the following Debt: (bi) no Default or Event Debt of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any Subsidiary under the Credit Facility in an aggregate principal amount not to exceed $200.0 million at any one time outstanding; (ii) Guarantees by Subsidiaries of its Restricted Subsidiaries shall have engaged Debt under the Credit Facility Incurred by the Company in accordance with this covenant; (iii) Debt of the Company evidenced by the Notes; (iv) Debt owed by the Company to any Asset Sale Subsidiary of the Company or acquisition, or shall have designated owed by any Restricted Subsidiary of the Company to be an Unrestricted Subsidiary the Company or any Unrestricted other Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
Company (c) If the but only so long as such Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt held by the Company or any such Subsidiary); (v) Debt outstanding on the date the Notes are originally issued under the Indenture; (vi) Debt 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 Debt is extinguished within two Business Days of its Restricted Subsidiaries Incurrence; (vii) Refinancing Debt; and the inclusion in EBITDA (viii) renewals of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
Guarantees permitted by clause (d) Notwithstanding paragraph (aii) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under this Section 4.6covenant, Guarantees of (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens or obligations with respect to letters of credit supporting supporting) Debt otherwise included in the determination of such particular amount shall not also be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes the purpose of determining compliance with this Section 4.6covenant, (A) in the event that an item of Debt meets the criteria of more than one of the types of Debt described in the above (other than Debt referred to in clause (x) of the preceding sentence), including under Section 4.6(a) of this Section 4.6clauses, the Company, in its sole discretion, shall classify, and from time to time may reclassify, classify such item of Debt.
(f) The Issuers Debt and any Guarantor will not Incur any Debt that pursuant only be required to its terms is subordinate or junior in right include the amount and type of payment to any Debt unless such Debt in one of such clauses; and (B) the amount of Debt issued at a price which is subordinated in right of payment less than the principal amount thereof shall be equal to the Notes and amount of the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior liability in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or respect thereof determined in accordance with greater or lower priorityGAAP.
Appears in 1 contract
Samples: Indenture (Metrocall Inc)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any Restricted Subsidiary may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a1) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified relevant Four Quarter Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 2.0:1.0 and (b2) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Four Quarter Period or subsequent thereto and on or prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisitionother disposition, Asset Acquisition, Investments, mergers, consolidations, discontinued operations (as determined in accordance with GAAP) or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA Consolidated Cash Flow Available for Fixed Charges and Adjusted Consolidated Interest Expense for the Specified Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition other disposition, Asset Acquisition, Investments, mergers, consolidations, discontinued operations or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition other disposition, Asset Acquisition, Investments, mergers, consolidations, discontinued operations or designation had occurred on the first day of the Specified Four Quarter Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous concurrent acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to (1) the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and (2) the inclusion inclusion, in EBITDA the Company’s Consolidated Cash Flow Available for Fixed Charges, of the EBITDA Consolidated Cash Flow Available for Fixed Charges of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (athe provisions of Section 4.09(a) abovehereof, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) For purposes of determining any particular amount of Debt under this Section 4.64.09, (x1) the first $25,000,000 of Debt Incurred and outstanding under the Credit Agreement on the Issue Date shall at all times be treated as Incurred pursuant to clause (i)(ba) of the definition of "“Permitted Debt," ” and (y2) Guarantees, Liens Guarantees or obligations with respect to letters of credit in each case supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.09, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than above, including categories of Permitted Debt referred to in and under clause (x1) of the preceding sentence), including under Section 4.6(a4.09(a) of this Section 4.6hereof, the Company, in its sole discretion, shall may classify, and from time to time may reclassify, all or any portion of such item of DebtDebt in any manner such that the item of Debt would be permitted to be incurred at the time of such classification or reclassification, as applicable.
(f) The Issuers accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the form of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this Section 4.09.
(g) For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date such Debt was incurred. Notwithstanding any other provision of this Section 4.09, the maximum amount of Debt that the Company or any Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.
(h) The Company and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower prioritypriority or by virtue of structural subordination.
Appears in 1 contract
Samples: Indenture (Fti Consulting Inc)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt); provided, unlessthat the Company and any of its Restricted Subsidiaries that is a Guarantor may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be greater than 2.0:1 2.0 to 1.0 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on . Notwithstanding the first day paragraph of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above4.9, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under compliance with this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall initially be treated as Incurred pursuant to clause (i)(bi) of the definition of "“Permitted Debt," ” and may not later be re-classified, (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular the amount of Debt shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated except as Debt. For purposes of determining compliance with this Section 4.6provided above, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x1) of the preceding sentence), including under Section 4.6(a) categories of Permitted Debt and/or would have been permitted to have been Incurred pursuant to the first paragraph of this Section 4.64.9, the Company, in its sole discretion, shall may classify, and from time to time may reclassify, all or any portion of such item of Debt.
Debt as being within one (f1) or more of such categories or as being Debt permitted to be Incurred pursuant to the first paragraph of this Section 4.9. The Issuers accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Equity Interests in the forms of additional shares of Equity Interests with the same terms will not be deemed to be an Incurrence of Debt or issuance of Equity Interests for purposes of this Section 4.9. The Company and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or a lower priority.
Appears in 1 contract
Samples: Indenture (Louisiana-Pacific Corp)
Limitation on Incurrence of Debt. (a) The Company Issuer will not, and will not permit any of its the Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Issuer and any of the Restricted Subsidiaries that is a Guarantor may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company Issuer and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be greater than 2.0:1 2.0:1.0 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) IfNotwithstanding Section 4.9(a), during the Specified Period Issuer and the Restricted Subsidiaries may Incur “Permitted Debt” as follows:
(i) Debt incurred pursuant to, and the issuance or creation of letters of credit and bankers’ acceptances under or in connection with (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the maximum potential liability of the Issuer and its Restricted Subsidiaries thereunder), any Credit Facility in an aggregate principal amount outstanding under this clause (i) at any time not to exceed the greatest of (x) $100,000,000, (y) the Borrowing Base as of the date of such incurrence or (z) an amount such that the ABL Priority Leverage Ratio of the Issuer and its Restricted Subsidiaries would not exceed 1.75 to 1.00.
(ii) Debt outstanding under the Notes (excluding any Additional Notes, but including any Exchange Notes issued in exchange for the Notes pursuant to the Registration Rights Agreement) and Guarantees of the Notes and Exchange Notes and contribution, indemnification and reimbursement obligations owed by the Issuer or any Guarantor to any of the other of them in respect of amounts paid or payable on such Notes and Exchange Notes;
(iii) Debt, or pension withdrawal liabilities reflected in the most recent consolidated balance sheet of the Issuer as of the Issue Date that subsequently becomes Debt, of the Issuer or any Restricted Subsidiary outstanding at the time of the Issue Date (other than clause (i) or (ii) above), including, without limitation, the Existing Notes until their repurchase or redemption with the net proceeds of the issuance of Notes;
(iv) Debt Incurred following the Issue Date that is owed to and held by the Issuer or a Restricted Subsidiary; provided that if such Debt is owed by the Issuer or a Guarantor to a Restricted Subsidiary that is not a Guarantor, such Debt shall be subordinated to the prior payment in full of the Obligations;
(v) Guarantees Incurred by the Issuer or a Restricted Subsidiary of Debt or other obligations of the Issuer or a Restricted Subsidiary (including Guarantees by any Restricted Subsidiary of Debt under any Credit Facility); provided that (a) such Debt is Permitted Debt or is otherwise Incurred in accordance with this Section 4.9 and (b) such Guarantees are subordinated to the Notes to the same extent as the Debt being guaranteed;
(vi) Debt Incurred in respect of workers’ compensation claims, general liability or trucker’s liability claims, unemployment or other insurance and self-insurance obligations, payment obligations in connection with health or other types of social security benefits, indemnity, bid, performance, warranty, release, judgment, appeal, advance payment, customs, surety and similar bonds, letters of credit for operating purposes and completion guarantees and warranties provided or Incurred (including Guarantees thereof) by the Issuer or a Restricted Subsidiary in the ordinary course of business;
(vii) Debt under Hedging Obligations entered into to manage fluctuations in interest rates, commodity prices and currency exchange rates (and not for speculative purposes);
(viii) Debt of the Issuer or any Restricted Subsidiary pursuant to Capital Lease Obligations and Purchase Money Debt; provided that the aggregate principal amount of such Debt outstanding at any time under this clause (viii) may not exceed the greater of (a) $15,000,000 or (b) 5.0% of Total Assets, in the aggregate;
(ix) the issuance by any of the Restricted Subsidiaries to the Issuer or to any of the Restricted Subsidiaries of shares of preferred stock; provided, however, that:
(a) any subsequent thereto issuance or transfer of Capital Interests that results in any such preferred stock being held by a Person other than the Issuer or Restricted Subsidiaries; and
(b) any sale or other transfer of any such preferred stock to a Person that is not either the Issuer or a Restricted Subsidiary; shall be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (ix);
(x) Debt arising from (x) customary cash management, cash pooling or setting off arrangements, and automated clearing house transactions, (y) any Bank Product (excluding Hedging Obligations entered into for speculative purposes) or (z) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that any such Debt Incurred pursuant to clause (z) is extinguished within five Business Days of the Incurrence;
(xi) Debt of the Issuer or any Restricted Subsidiary not otherwise permitted pursuant to this definition (including additional Debt under the ABL Credit Agreement, Purchase Money Debt and Capital Lease Obligations), in an aggregate principal amount not to exceed $15,000,000 at any time outstanding;
(xii) Refinancing Debt in respect of any Debt permitted by clauses (ii) and (iii) above, this clause (xii), clause (xiii) below or Debt Incurred in accordance with clause (a) of this Section 4.9;
(xiii) Acquired Debt incurred by a Restricted Subsidiary prior to the date of determinationtime that such Restricted Subsidiary was acquired or merged into the Issuer and was not Debt incurred in connection with, or in contemplation of, such acquisition or merger; provided that immediately after giving effect to any such acquisition or merger on a pro forma basis, the Company Issuer (x) could Incur $1.00 of additional Debt (other than Permitted Debt) in accordance with clause (a) of this Section 4.9 or (y) the Consolidated Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries would be equal to or greater than such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such acquisition or merger;
(xiv) Debt consisting of Debt issued by the Issuer or any of its Restricted Subsidiaries shall have engaged to current or former officers, directors, employees and consultants thereof, their respective estates, spouses or former spouses, in each case to finance the purchase or redemption of Equity Interests of the Issuer or any direct or indirect parent company of the Issuer to the extent permitted pursuant to clause (iv) of the second paragraph of Section 4.7;
(xv) Debt of the Issuer to a Restricted Subsidiary; provided that any such Debt owing to a Restricted Subsidiary that is not a Guarantor is expressly subordinated in right of payment to the Notes; provided, further, that any subsequent issuance or transfer of any capital stock or any other event which results in any Asset Sale or acquisition, or shall have designated any such Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such Debt (except to the Issuer or another Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period ) shall be calculated on deemed, in each case, to be an incurrence of such Debt not permitted by this clause (xv);
(xvi) Debt of a pro forma basis giving effect Restricted Subsidiary to the Issuer or another Restricted Subsidiary; provided that, if a Guarantor incurs such Asset Sale Debt to a Restricted Subsidiary that is not a Guarantor, such Debt is expressly subordinated in right of payment to the Guarantee of such Guarantor; provided, further, that any subsequent issuance or acquisition transfer of capital stock or designation, as the case may be, and the application any other event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of any proceeds therefrom as if such Asset Sale Debt (except to the Issuer or acquisition another Restricted Subsidiary) shall be deemed, in each case, to be an incurrence of such Debt not permitted by this clause (xvi);
(xvii) Debt in respect of customer deposits and advance payments received in the ordinary course of business from customers for goods or designation had occurred on services purchased in the first day ordinary course of business;
(xviii) Debt of the Specified PeriodIssuer or any Restricted Subsidiary consisting of (x) the financing of insurance premiums or (y) take-or-pay obligations contained in supply arrangements, in each case Incurred in the ordinary course of business;
(xix) Debt Incurred by the Issuer or any Restricted Subsidiary for pension fund withdrawal or partial withdrawal obligations in an amount not to exceed, in the aggregate at any one time outstanding, $5,000,000; and
(xx) Debt of Restricted Subsidiaries of the Issuer that are not Guarantors in an amount not to exceed, in the aggregate at any one time outstanding, $7,500,000.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) For purposes of determining any particular amount of Debt under compliance with this Section 4.64.9, (x) the first $25,000,000 outstanding principal amount of any Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause counted only once such that (i)(bwithout limitation) of the definition of "Permitted Debt," (y) Guarantees, Liens any obligation arising under any Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (zy) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated except as Debt. For purposes of determining compliance with this Section 4.6provided above, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than above, including categories of Permitted Debt referred to in clause (x) of the preceding sentenceand Section 4.9(a), including under Section 4.6(a) of this Section 4.6, the CompanyIssuer, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt and such Debt need not be permitted solely by reference to one provision of this Section 4.9 but may be permitted in part by one such provision and in part by one or more other provisions of this Section 4.9.
(d) The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the forms of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms and changes in the amount outstanding due solely to the result of fluctuations in the exchange rates of currencies will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this Section 4.9.
(e) Notwithstanding anything to the contrary herein, the maximum amount of Debt that may be outstanding pursuant to this Section 4.9 will not be deemed exceeded due to the results of fluctuations in exchange rates or currency values. For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar equivalent principal amount of Debt denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred.
(f) The Issuers None of the Issuer and any Guarantor Guarantors will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to at least the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, Incur any Debt (including Acquired Debt); provided, unlesshowever, that the Company and any of the Restricted Subsidiaries may Incur Debt (including Acquired Debt) if immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified Four Quarter Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid (other than Debt Incurred under the revolving portion of a Debt Facility) since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be at least 2.00 to 1.00; provided, further, that the aggregate principal amount of Debt Incurred by Non-Guarantor Subsidiaries pursuant to this Section 4.09(a) shall not exceed the greater than 2.0:1 of (i) $125.0 million and (bii) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence 7.0% of the Incurrence Total Assets of such Debtthe Company and its Restricted Subsidiaries in the aggregate.
(b) If, during Notwithstanding the Specified Period or subsequent thereto and prior to the date provisions of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above4.09(a), the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(ec) For purposes of determining any particular amount of Debt under this Section 4.6, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debt. For purposes of determining compliance with this Section 4.64.09, in the event that an item of Debt meets the criteria of more than one of the types categories of Permitted Debt described above (other than Debt referred or is permitted to in clause (x) of the preceding sentence), including be Incurred under Section 4.6(a) of this Section 4.64.09(a), the Company, in its sole discretion, shall classifyclassify or divide, and from time to time may reclassifyreclassify or redivide, all or any portion of such item of Debt in any manner that complies with this Section 4.09, including the definition of “Permitted Debt”; provided that (i) all Debt outstanding on the Issue Date under the Senior Credit Facility shall be deemed Incurred under clause (1) of the definition of “Permitted Debt” and not Section 4.09(a) or clause (4) of the definition of “Permitted Debt” and may not later be reclassified and (ii) all Debt outstanding on the Issue Date under the Existing Notes shall be deemed Incurred under clause (3) of the definition of “Permitted Debt” and not Section 4.09(a) or clause (4) of the definition of “Permitted Debt” and may not later be reclassified. If obligations in respect of letters of credit are Incurred pursuant to a Debt Facility and relate to other Debt, then such letters of credit shall be treated as Incurred pursuant to clause (1) of the definition of “Permitted Debt” and such other Debt shall not be included. In addition, except as provided in the preceding sentence of this Section 4.09(c), Guarantees of, or obligations in respect of letters of credit relating to, Debt that is otherwise included in the determination of a particular amount of Debt shall not be included. Furthermore, in the event an item of Debt (or any portion thereof), Restricted Payments, Investments and/or a Lien (or any portion thereof) is incurred or issued pursuant to the definition of “Permitted Debt,” “Permitted Payments,” “Permitted Investments” and/or “Permitted Liens” (other than in reliance on an applicable leverage ratio) on the same date that an item of Debt (or any portion thereof), Restricted Payments, Investments and/or a Lien (or any portion thereof) is incurred or issued under Section 4.09(a) or an applicable leverage ratio within the definition of “Permitted Debt,” “Permitted Payments,” “Permitted Investments” and/or “Permitted Liens,” then the Consolidated Fixed Charge Coverage Ratio or applicable leverage ratio will be calculated with respect to such incurrence or issuance under Section 4.09(a) or the applicable clause of the definition of “Permitted Debt” without regard to any concurrent incurrence under the definition of “Permitted Debt” (other than in reliance on an applicable leverage ratio).
(d) In connection with (i) the incurrence or issuance, as applicable, of revolving loan Debt under this Section 4.09 or (ii) any commitment to incur or issue Debt, if any, under this Section 4.09 and the granting of any Lien to secure such Debt, the Company may designate such incurrence or issuance or commitment and the granting of any Lien therefor as having occurred on the date of first incurrence or issuance of such revolving loan Debt or commitment (such date, the “Deemed Date”), and any related subsequent actual incurrence or issuance or granting of such Lien will be deemed for all purposes under this Indenture to have been incurred or issued or granted on such Deemed Date, including, without limitation, for purposes of calculating the usage of any baskets hereunder (if applicable) (and all such calculations on and after the Deemed Date until the termination of such commitment shall be made on a pro forma basis giving effect to the deemed incurrence or issuance, the granting of any Lien therefor and related transactions in connection therewith); provided that the Company may revoke an election to treat all or any portion of such incurrence or issuance or any such Debt, as the case may be, as being incurred at any time.
(e) In addition, for purposes of determining compliance with this Section 4.09, if any Debt is Incurred to refinance any Debt initially Incurred in reliance on any provision of this Section 4.09 measured by reference to a percentage of Total Assets and such refinancing would cause the percentage of Total Assets restriction to be exceeded if calculated based on Total Assets on the date of such refinancing, such percentage of Total Assets restriction shall not be deemed to be exceeded (and such newly Incurred Debt shall be deemed permitted) to the extent the principal amount of such newly Incurred Debt does not exceed the principal amount of such Debt being refinanced, plus the related costs incurred or payable in connection with such refinancing.
(f) The Issuers and For purposes of determining compliance of any Guarantor will not Incur any non-U.S. dollar-denominated Debt with this Section 4.09, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term Debt, or first committed, in the case of revolving credit Debt; provided, however, that pursuant to its terms is subordinate or junior in right of payment to any Debt unless if such Debt is subordinated Incurred to refinance other Debt denominated in right the same or different 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 payment such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Debt does not exceed the principal amount of such Debt being refinanced. Notwithstanding any other provision of this Section 4.09, the maximum amount of Debt that the Company may Incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Debt Incurred to refinance other Debt, if Incurred in a different currency from the Debt being refinanced, shall be calculated based on the currency exchange rate applicable to the Notes currencies in which such Refinancing Debt is denominated that is in effect on the date of such refinancing.
(g) The accrual of interest, accrual of dividends, the accretion of accreted value, the amortization of debt discount and the Note Guarantees to payment of interest on Debt in the form of additional Debt and the payment of dividends on Capital Interests in the form of additional shares of Capital Interests with the same extent; provided that Debt terms will not be considered subordinate deemed to be an Incurrence of Debt for purposes of this Section 4.09.
(h) The following shall not be deemed a separate Incurrence of Debt: (i) the obligation to pay a premium in respect of Debt arising in connection with the issuance of a notice of redemption or junior making a mandatory offer to purchase such Debt and (ii) unrealized losses or charges in right respect of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priorityHedging Obligations.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt); provided, however, that the Company and any Guarantor may Incur Debt (including Acquired Debt)) if the Company’s Consolidated Fixed Charge Coverage Ratio for the Company’s most recently ended Four-Quarter Period for which internal financial statements are available on or immediately preceding the date on which such additional Debt is Incurred, unlesswould have been at least 2.00 to 1.00, immediately after giving effect to the Incurrence of such Debt and the receipt and calculated on a Pro Forma Basis (including a pro forma application of the net proceeds therefrom, (a) the Interest Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be greater than 2.0:1 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on . Notwithstanding the first day paragraph of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above4.9, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under compliance with this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular the amount of Debt shall not be included and (zy) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debt. For purposes of determining compliance with this Section 4.6, in the event that an item of Debt meets the criteria of more than one of the types categories of Permitted Debt described above (other than Debt referred and/or would have been permitted to in clause (x) of have been Incurred pursuant to the preceding sentence), including under Section 4.6(a) first paragraph of this Section 4.64.9, the Company, in its sole discretion, shall may classify, and from time to time may reclassify, all or any portion of such item of Debt as being within one or more of such categories or as being Debt permitted to be Incurred pursuant to the first paragraph of this Section 4.9; provided that all Debt outstanding under the ABL Credit Facility on the Original Issue Date shall be treated as incurred on the Original Issue Date under clause (i) of the definition of “Permitted Debt.
”. Debt permitted by this Section 4.9 need not be permitted solely by reference to one provision permitting such Debt but may be permitted in part by one such provision and in part by one or more other provisions of this Section 4.9 permitting such Debt. The accrual of interest and dividends, the accretion of accreted value, the accretion or amortization of original issue discount, the payment of interest on any Debt in the form of additional Debt, the payment of dividends on Equity Interests in the forms of additional shares of Equity Interests with the same terms, and changes to amounts outstanding in respect of Hedging Obligations solely as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder shall not be deemed to be an Incurrence of Debt. For purposes of determining compliance with any U.S. Dollar-denominated restriction on the Incurrence of Debt, the U.S. Dollar-equivalent principal amount of Debt denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term Debt, or first committed, in the case of revolving credit Debt; provided that if such Debt is Incurred to refinance other Debt 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 Refinancing Debt does not exceed the principal amount of such Debt being refinanced (fplus interest or premiums, defeasance costs, underwriting discounts and fees and expenses incurred in connection therewith). Notwithstanding any other provision of this Section 4.9, any increase in the U.S. Dollar equivalent of outstanding Debt of the Company or any of its Restricted Subsidiaries denominated in a currency other than U.S. Dollars resulting from fluctuations in the exchange values of currencies shall not be considered to be an Incurrence of Debt for purposes of this Section 4.9; provided that the amount of Debt of the Company and its Restricted Subsidiaries outstanding at any time for purposes of covenant compliance shall be the U.S. Dollar equivalent of all such Debt of the Company and its Restricted Subsidiaries outstanding at such time. In the event an item of Debt (or any portion thereof) is Incurred as Permitted Debt (other than Permitted Debt pursuant to clause (xv) of the definition thereof) on the same date that an item of Debt is Incurred under the first paragraph of this Section 4.9, then the Consolidated Fixed Charge Coverage Ratio shall be calculated with respect to such Incurrence under the first paragraph of this Section 4.9 without regard to any Incurrence of such Permitted Debt. Unless the Company elects otherwise, the Incurrence of Debt shall be deemed Incurred first under the first paragraph of this Section 4.9 to the extent permitted, with the balance Incurred as Permitted Debt. The Issuers Company shall not, and shall not permit any Guarantor will not Incur to Incur, any Debt that pursuant to its terms is subordinate or junior in right of payment to any other Debt of the Company or such Guarantor, unless such Debt is also subordinated in right of payment to the Notes and or the Note Guarantees to Guarantee of such Guarantor, as the same extent; case may be, on substantially identical terms; provided that Debt will shall not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or by virtue of being secured to on a greater junior lien or lesser extent or with greater or lower prioritypriority basis.
Appears in 1 contract
Samples: Indenture (Target Hospitality Corp.)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt); provided, unlesshowever, that the Company and any of the Guarantors may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be greater than 2.0:1 2.00 to 1.00 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt (any Debt Incurred pursuant to this provision being herein referred to as “Coverage Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on ”). Notwithstanding the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred outstanding under the Credit Agreement on the Issue Date shall at all times be treated as Incurred pursuant to clause (i)(bi) of the definition of "“Permitted Debt," ” (y) Guarantees, Liens Debt outstanding under the Company’s existing accounts receivables facility on the Issue Date shall at all times be treated as Incurred pursuant to clause (xv) of the definition of “Permitted Debt” and (z) Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including under Section 4.6(a) any Coverage Debt and any category of this Section 4.6Permitted Debt, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
(f) The Issuers and . For purposes of determining compliance of any Guarantor will not Incur non-U.S. dollar-denominated Debt with this Section 4.9, the amount outstanding under U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of any Debt term Debt, or first committed, in the cases of any revolving credit Debt, provided, however, that pursuant to its terms is subordinate or junior in right of payment to any Debt unless if such Debt is subordinated Incurred to Refinance other Debt denominated in right of payment to the Notes and the Note Guarantees to the same extent; provided that or different 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 Refinancing Debt will does not be considered subordinate or junior in right exceed the principal amount of payment to any other Debt solely by virtue of such indebtedness being unsecured or secured to a greater or lesser extent or with greater or lower priorityRefinanced.
Appears in 1 contract
Samples: Supplemental Indenture (Olin Corp)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any Guarantor may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified PeriodFour Quarter Period (provided that any Debt Incurred under the revolving portion of a credit agreement shall be calculated (x) on an annualized basis for periods prior to the one year anniversary of the Issue Date and (y) thereafter, only on such date), had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 2.0:1.0, and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) . If, during the Specified Four Quarter Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisitionAsset Acquisition, Investments, mergers, consolidations, discontinued operations (as determined in accordance with GAAP) or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA Consolidated Cash Flow Available for Fixed Charges and Adjusted Consolidated Interest Expense for the Specified Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition Asset Acquisition, Investments, mergers, consolidations, discontinued operations or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition Asset Acquisition or designation had occurred on the first day of the Specified Four Quarter Period.
(c) . If the Debt which is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to (x) the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and (y) the inclusion inclusion, in EBITDA Consolidated Cash Flow Available for Fixed Charges, of the EBITDA Consolidated Cash Flow Available for Fixed Charges of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) . Notwithstanding the first paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall at all times be treated as Incurred pursuant to clause (i)(bi) of the definition of "“Permitted Debt," ” and (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(a) the first paragraph of this Section 4.64.9, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
(f) . The Issuers accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this Section 4.9. The Company and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower prioritypriority or by virtue of structural subordination.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any of its Restricted Subsidiaries that is a Guarantor may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Coverage Consolidated Total Debt Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be greater less than 2.0:1 or equal to 5.25 to 1.0, and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on . Notwithstanding the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under compliance with this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall initially be treated as Incurred pursuant to clause (i)(bi) of the definition of "“Permitted Debt," ” (y) Guarantees, Liens the outstanding principal amount of any Debt shall be counted only once such that (without limitation) any obligation arising under any Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated except as Debt. For purposes of determining compliance with this Section 4.6provided above, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including under Section 4.6(a) categories of Permitted Debt and the first paragraph of this Section 4.64.9, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
(f) . The Issuers accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the forms of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms and changes in the amount outstanding due solely to the result of fluctuations in the exchange rates of currencies will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this Section 4.9. The Company and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt); provided, unlessthe Company and the Guarantors may Incur Debt so long as, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified PeriodFour Quarter Period (other than any Debt Incurred under the revolving portion of a credit agreement), had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 2.00:1 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) . If, during the Specified Four Quarter Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, Asset Acquisition or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA Consolidated Cash Flow Available for Fixed Charges and Adjusted Consolidated Interest Expense for the Specified Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition Asset Acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition Asset Acquisition or designation had occurred on the first day of the Specified Four Quarter Period.
(c) . If the Debt which is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion inclusion, in EBITDA Consolidated Cash Flow Available for Fixed Charges, of the EBITDA Consolidated Cash Flow Available for Fixed Charges of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) . Notwithstanding the first paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For the purposes of determining compliance with this Section 4.64.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(apart (a) in the first paragraph of this Section 4.64.9, the Company, in its sole discretion, shall may classify, and from time to time may reclassify, all or any portion of such item of Debt.
; provided, however, that Debt outstanding on the Issue Date under the Credit Agreement shall always be deemed Incurred under clause (fi) of the definition of Permitted Debt. The Issuers and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate accrual of interest, the accretion or junior in right amortization of payment to any Debt unless such Debt is subordinated in right of payment to the Notes original issue discount and the Note Guarantees to payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Stock in the forms of additional shares of Capital Stock with the same extent; provided that Debt terms will not be considered subordinate deemed to be an Incurrence of Debt or junior in right issuance of payment to any other Debt solely by virtue Capital Stock for purposes of being unsecured or secured to a greater or lesser extent or with greater or lower prioritythis Section 4.9.
Appears in 1 contract
Samples: Indenture (Actuant Corp)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively “incur”) any Debt Indebtedness (including Acquired Debt)) and will not permit any of its Restricted Subsidiaries to issue any shares of Preferred Stock; provided, unlesshowever, immediately after giving effect to that the Incurrence of such Debt Company and any Guarantor may incur Indebtedness (including Acquired Debt) and any Restricted Subsidiary may issue Preferred Stock if the receipt and application of the proceeds therefrom, (a) the Interest Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries (on a consolidated combined basis) for the last Company’s most recently ended four full fiscal quarters for which internal financial information is statements are available at immediately preceding the date of determination (the "Specified Period"), on which such additional Indebtedness is incurred or such Preferred Stock is issued would have been at least 2.0 to 1.0 determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be greater than 2.0:1 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on including a pro forma basis giving effect to such Asset Sale application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or acquisition or designationthe Preferred Stock had been issued, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of such four-quarter period. The first paragraph of this covenant will not prohibit the Specified Periodincurrence of any of the following (collectively, “Permitted Debt”):
(1) to (A) the Incurrence incurrence by the Company or a Restricted Subsidiary of such Acquired Debt or such other Debt Indebtedness under the ABL Facility together with the incurrence by the Company or any Restricted Subsidiary of its Restricted Subsidiaries the guarantees thereunder and the inclusion issuance and creation of letters of credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the face amount thereof), up to an aggregate principal amount equal to $375.0 million outstanding at any one time, less the amount of all payments actually made by the borrower thereunder in EBITDA respect of Indebtedness thereunder with Net Proceeds from Asset Sales pursuant to clause (1) of the EBITDA third paragraph of Section 4.10; and (B) the incurrence by the Company or a Restricted Subsidiary of Indebtedness under the Term Loan Facility together with the incurrence by the Company or any Restricted Subsidiary of the acquired Personguarantees thereunder, businessup to an aggregate principal amount, Property equal to $650.0 million outstanding at any one time, less the amount of all payments actually made by the borrower thereunder in respect of Indebtedness thereunder with Net Proceeds from Asset Sales pursuant to clause (1) of the third paragraph of Section 4.10; provided, however, that the Company shall use the net proceeds from any Indebtedness that is not revolving Indebtedness incurred under this clause (1) in excess of $620.0 million either to (i) redeem the Notes (x) prior to October 15, 2013, at the redemption price set forth in Section 3.7(a) or assets (y) on or redesignated Subsidiary.
after October 15, 2013, at the applicable redemption price set forth in Section 3.7(b), or (dii) Notwithstanding paragraph distribute to Holdings in order to permit Holdings to redeem the Holdings Notes (a) aboveprior to October 15, 2013, at the redemption price set forth in Section 3.7(a) of the Holdings Notes Indenture or (b) on or after October 15, 2013, at the applicable redemption price set forth in Section 3.7(b) of the Holdings Notes Indenture;
(2) the incurrence by the Company and the Guarantors of Indebtedness represented by (A) the Notes (including any Guarantee thereof) on the Issue Date and any Notes issued in exchange for such Notes (including any Guarantee thereof) pursuant to the Registration Rights Agreement or (B) the New Guitar Center Notes and related guarantees issued under the terms of the Assumption and Assignment;
(3) any Indebtedness of the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) For purposes of determining any particular amount of Debt under this Section 4.6, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement in existence on the Issue Date shall be treated as Incurred (other than Indebtedness described in clauses (1) or (2));
(4) Indebtedness (including Capitalized Lease Obligations) incurred by the Company or any Restricted Subsidiary to finance the purchase, lease or improvement of property (real or personal) or equipment that is used or useful in a Permitted Business (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets) in an aggregate principal amount that, when aggregated with the principal amount of all other Indebtedness then outstanding and incurred pursuant to this clause (i)(b4) of does not exceed $20.0 million;
(5) Indebtedness incurred by the definition of "Permitted Debt," (y) Guarantees, Liens Company or any Restricted Subsidiary constituting reimbursement obligations with respect to letters of credit supporting Debt otherwise included issued in the determination ordinary course of business, including without limitation letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims; provided, however, that upon the drawing of such particular amount shall not be included and letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;
(z6) any Liens granted pursuant to Indebtedness arising from agreements of the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debt. For purposes Company or a Restricted Subsidiary providing for indemnification, adjustment of determining compliance with this Section 4.6purchase price, earn-outs or similar obligations, in each case incurred or assumed in connection with the event that an item disposition or acquisition of Debt meets the criteria of more than one of the types of Debt described above (any business, assets or a Subsidiary, other than Debt referred to in clause (x) guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the preceding sentence)purpose of financing such acquisition; provided, including under Section 4.6(a) of this Section 4.6however, the Company, in its sole discretion, shall classify, and from time to time may reclassify, such item of Debt.
(f) The Issuers and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.that
Appears in 1 contract
Samples: Credit Agreement (Music123, Inc.)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified PeriodFour-Quarter Period (as defined below), had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four-Quarter Period, and any other Debt repaid since the beginning of the Specified Four-Quarter Period had been repaid at the beginning of the Specified Four-Quarter Period, would be greater than 2.0:1 2.00:1 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt; provided further, that Restricted Subsidiaries that are not Guarantors may Incur Debt pursuant to this paragraph, determined on a pro forma basis as if any such Debt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Four-Quarter Period (as defined below) had been Incurred and the proceeds thereof had been applied at the beginning of the Four-Quarter Period, and any other Debt repaid since the beginning of the Four-Quarter Period had been repaid at the beginning of the Four-Quarter Period, that would not exceed the greater of $40.0 million and 4.0% of Tangible Assets at any one time outstanding.
(b) If, during Notwithstanding the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) aboveimmediately preceding paragraph, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(ec) For purposes of determining any particular amount of Debt under this Section 4.6, SECTION 4.9; (xa) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (zb) any Liens granted pursuant the principal amount of Debt outstanding under this SECTION 4.9 shall be determined after giving effect to the equal and ratable provisions referred application of proceeds of any such Debt to in Section 4.11 shall not be treated as refinance any such other Debt. For purposes of determining compliance with this Section 4.6SECTION 4.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(apart (a) of in this Section 4.6SECTION 4.9, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt. If Debt originally Incurred in reliance upon the First Lien Secured Debt Cap under clause (i) of the definition of “Permitted Debt” is being refinanced under clause (i) of the definition of “Permitted Debt” and such refinancing would cause the maximum amount of Debt thereunder to be exceeded at such time, then such refinancing will nevertheless be permitted thereunder and such Debt will be deemed to have been incurred under such clause (i) so long as (x) the Liens securing such Refinancing Debt have a lien priority (without regard to control of remedies) equal or junior to the Liens securing the Debt being refinanced and (y) the principal amount of such Refinancing Debt does not exceed the principal amount of Debt being refinanced plus all accrued interest on the Debt being refinanced and the amount of all fees and expenses, including premiums and defeasance costs, incurred in connection with such refinancing. The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this SECTION 4.9.
(fd) The Issuers and any Guarantor For all purposes under this Indenture, no Debt will not Incur any Debt that pursuant be deemed to its terms is subordinate or junior in right of payment to any Debt unless such Debt is be subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or by virtue of being secured on a junior priority basis (or as a result of the control of remedies).
(e) In connection with the Company’s or a Restricted Subsidiary’s entry into an instrument containing a binding commitment in respect of any revolving Debt, the Company may elect, pursuant to an Officer’s Certificate delivered to the Trustee, to treat all or any portion of such commitment (any such amount elected until revoked as described below, an “Elected Amount”) under any Debt which is to be incurred (or any commitment in respect thereof) or secured by a greater Lien, as the case may be, as being incurred as of such election date, and:
(i) any subsequent incurrence of Debt under such commitment (so long as the total amount under such Debt does not exceed the Elected Amount) shall not be deemed, for purposes of any calculation under this Indenture, to be an incurrence of additional Debt or lesser extent an additional Lien at such subsequent time;
(ii) the Company may revoke an election of an Elected Amount at any time pursuant to an Officer’s Certificate delivered to the Trustee; and
(iii) for purposes of all subsequent calculations of the Consolidated Fixed Charge Coverage Ratio, the Elected Amount (if any) shall be deemed to be outstanding, whether or not such amount is actually outstanding, so long as the applicable commitment remains outstanding. For purposes of determining compliance with greater any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term debt, or first committed or first Incurred (whichever yields the lower priorityU.S. dollar equivalent), in the case of revolving credit debt. However, if the Debt is Incurred to refinance other Debt denominated in a foreign currency, and the 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 the refinancing, the U.S. dollar-denominated restriction will be deemed not to have been exceeded so long as the principal amount of Debt being refinanced plus all accrued interest on the Debt being refinanced and the amount of all fees and expenses, including premiums and defeasance costs, incurred in connection with such refinancing.
Appears in 1 contract
Samples: Indenture (Triumph Group Inc)
Limitation on Incurrence of Debt. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt); provided, unlesshowever, that the Company and any Guarantor may Incur Debt (including Acquired Debt) if, the Company’s Consolidated Fixed Charge Coverage Ratio for the Company’s most recently ended Four-Quarter Period for which internal financial statements are available on or immediately after giving effect preceding the date on which such additional Debt is Incurred, would have been at least 2.00 to the Incurrence of such Debt and the receipt and 1.00, calculated on a Pro Forma Basis (including a pro forma application of the net proceeds therefrom, (a) the Interest Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be greater than 2.0:1 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on . Notwithstanding the first day paragraph of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above4.9, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under compliance with this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular the amount of Debt shall not be included and (zy) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debt. For purposes of determining compliance with this Section 4.6, in the event that an item of Debt meets the criteria of more than one of the types categories of Permitted Debt described above (other than Debt referred and/or would have been permitted to in clause (x) of have been Incurred pursuant to the preceding sentence), including under Section 4.6(a) first paragraph of this Section 4.64.9, the Company, in its sole discretion, shall may classify, and from time to time may reclassify, all or any portion of such item of Debt as being within one or more of such categories or as being Debt permitted to be Incurred pursuant to the first paragraph of this Section 4.9; provided that all Indebtedness outstanding under the ABL Credit Facility on the Issue Date shall be treated as incurred on the Issue Date under clause (i) of the definition of “Permitted Debt.
”. Debt permitted by this Section 4.9 need not be permitted solely by reference to one provision permitting such Debt but may be permitted in part by one such provision and in part by one or more other provisions of this Section 4.9 permitting such Debt. The accrual of interest and dividends, the accretion of accreted value, the accretion or amortization of original issue discount, the payment of interest on any Debt in the form of additional Debt, the payment of dividends on Equity Interests in the forms of additional shares of Equity Interests with the same terms, and changes to amounts outstanding in respect of Hedging Obligations solely as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder will not be deemed to be an Incurrence of Debt. For purposes of determining compliance with any U.S. Dollar-denominated restriction on the Incurrence of Debt, the U.S. Dollar-equivalent principal amount of Debt denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term Debt, or first committed, in the case of revolving credit Debt; provided that if such Debt is Incurred to refinance other Debt 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 Refinancing Debt does not exceed the principal amount of such Debt being refinanced (fplus interest or premiums, defeasance costs, underwriting discounts and fees and expenses incurred in connection therewith). Notwithstanding any other provision of this Section 4.9, any increase in the U.S. Dollar equivalent of outstanding Debt of the Company or any of its Restricted Subsidiaries denominated in a currency other than U.S. Dollars resulting from fluctuations in the exchange values of currencies will not be considered to be an Incurrence of Debt for purposes of this Section 4.9; provided that the amount of Debt of the Company and its Restricted Subsidiaries outstanding at any time for purposes of covenant compliance will be the U.S. Dollar equivalent of all such Debt of the Company and its Restricted Subsidiaries outstanding at such time. In the event an item of Debt (or any portion thereof) is Incurred as Permitted Debt (other than Permitted Debt pursuant to clause (xv) of the definition thereof) on the same date that an item of Debt is Incurred under the first paragraph of this Section 4.9, then the Consolidated Fixed Charge Coverage Ratio will be calculated with respect to such Incurrence under the first paragraph of this Section 4.9 without regard to any Incurrence of such Permitted Debt. Unless the Company elects otherwise, the Incurrence of Debt will be deemed Incurred first under the first paragraph of this Section 4.9 to the extent permitted, with the balance Incurred as Permitted Debt. The Issuers Company will not, and will not permit any Guarantor will not Incur to Incur, any Debt that pursuant to its terms is subordinate or junior in right of payment to any other Debt of the Company or such Guarantor, unless such Debt is also subordinated in right of payment to the Notes and or the Note Guarantees to Guarantee of such Guarantor, as the same extentcase may be, on substantially identical terms; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or by virtue of being secured to on a greater junior lien or lesser extent or with greater or lower prioritypriority basis.
Appears in 1 contract
Samples: Indenture (Target Hospitality Corp.)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt); provided that the Company and any Restricted Subsidiary may Incur Debt (including Acquired Debt), unlessif, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (ai) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified Period, Four Quarter Period had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 2.0:1.0 and (bii) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Four Quarter Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisitionAsset Acquisition, Investments, mergers, consolidations, discontinued operations (as determined in accordance with GAAP) or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA Consolidated Cash Flow Available for Fixed Charges and Adjusted Consolidated Interest Expense for the Specified Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition Asset Acquisition, Investments, mergers, consolidations, discontinued operations or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition Asset Acquisition or designation had occurred on the first day of the Specified Four Quarter Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to (i) the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and (ii) the inclusion inclusion, in EBITDA the Company’s Consolidated Cash Flow Available for Fixed Charges, of the EBITDA Consolidated Cash Flow Available for Fixed Charges of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (athe provisions of Section 4.09(a) abovehereof, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) For purposes of determining any particular amount of Debt under this Section 4.64.09, (xi) the first $25,000,000 of Debt Incurred and outstanding under the Credit Agreement on the Issue Date shall at all times be treated as Incurred pursuant to clause (i)(b1) of the definition of "“Permitted Debt," ” and (yii) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.09, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than above, including categories of Permitted Debt referred to in and under clause (xi) of the preceding sentence), including under Section 4.6(a4.09(a) of this Section 4.6hereof, the Company, in its sole discretion, shall may classify, and from time to time may reclassify, all or any portion of such item of DebtDebt in any manner such that the item of Debt would be permitted to be incurred at the time of such classification or reclassification, as applicable.
(f) The Issuers accrual of interest, the accretion or amortization of original issue discount and the payment of interest or Debt in the form of additional Debt or payment of dividends on Capital Interests in the form of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this Section 4.09.
(g) For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date such Debt was incurred. Notwithstanding any other provision of this Section 4.09, the maximum amount of Debt that the Company or any Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.
(h) The Company and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt of the Company or such Guarantor unless such Debt is also subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower prioritypriority or by virtue of structural subordination.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt; provided that the Company or any Guarantor may Incur additional Debt (including Acquired Debt), unlessif, immediately after giving pro forma effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Coverage Consolidated Total Debt Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be greater less than 2.0:1 or equal to 4.75 to 1.0 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on . Notwithstanding the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under compliance with this Section 4.64.9, (xx)(a) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date that is a revolving credit facility (and any replacement or refinancing thereof) shall be treated as Incurred pursuant to clause (i)(bi) of the definition of "“Permitted Debt," ” and may not later be reclassified and (b) Debt Incurred under the Credit Agreement (other than Debt that is a revolving credit facility referred to in clause (x)) (and any replacement or refinancing thereof) shall be treated as Incurred pursuant to clause (ii) of the definition of “Permitted Debt” and may not later be reclassified and (y) Guarantees, Liens the outstanding principal amount of any Debt shall be counted only once such that (without limitation) any obligation arising under any Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.6covenant, except as provided above, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than in the definition of “Permitted Debt” or Debt referred Incurred pursuant to in clause (x) of the preceding sentence), including under Section 4.6(a) first paragraph of this Section 4.64.9, the Company, in its sole discretion, shall classifymay classify and divide, and from time to time may redivide and reclassify, all or any portion of such item of Debt.
Debt in more than one of the types of Debt described (fprovided that at the time of reclassification or redivision such Debt meets the criteria in such category or categories). The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the forms of additional Debt (including, for the avoidance of doubt, the issuance of PIK Notes) The Issuers or payment of dividends on Redeemable Capital Interests in the forms of additional shares of Redeemable Capital Interests with the same terms and any Guarantor changes in the amount outstanding due solely to the result of fluctuations in the exchange rates of currencies will not Incur be deemed to be an Incurrence of Debt or issuance of Redeemable Capital Interests for purposes of this Section 4.9. The Company will not and will not permit any Guarantor to, directly or indirectly, incur any Debt that pursuant to is by its terms is subordinate (or junior in right by the terms of payment to any Debt unless agreement governing such Debt is Debt) subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt of the Company or of such Guarantor, as the case may be, unless such Debt is also by its terms (or by the terms of any agreement governing such Debt) made expressly subordinate in right of payment to the Notes or the Note Guarantee of such Guarantor, to the same extent and in the same manner as such Debt is subordinated to such other Debt of the Company or such Guarantor, as the case may be. The Company will not, and will not permit any Guarantor to, directly or indirectly, incur any Debt that is secured by a Lien on the Collateral that is junior to any Lien securing other Debt of the Company or of such Guarantor, as the case may be, unless such Lien is also made junior to the Lien on the Collateral securing the Notes or the Note Guarantee of such Guarantor; provided, that the Company may incur Additional Notes and related guaranties and Refinancing Debt in respect of such Additional Notes and Notes and related guarantees, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Notes pursuant to the Intercreditor Agreement. For purposes of the foregoing, no Debt will be deemed to be subordinated in right of payment to any other Debt of the Company or any Guarantor solely by virtue of being unsecured or secured to by a greater Permitted Lien or lesser extent by virtue of the fact that the holders of such Debt have entered into intercreditor agreements or with greater other arrangements giving one or lower prioritymore of such holders priority over the other holders in the collateral held by them or other payments among them.
Appears in 1 contract
Samples: Indenture (LiveWatch Security, LLC)
Limitation on Incurrence of Debt. (a) The Company Parent will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Parent and any of its Restricted Subsidiaries that is an Issuer or Guarantor may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company Parent and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified Period, Four-Quarter Period had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four-Quarter Period, and any other Debt repaid since the beginning of the Specified Four-Quarter Period had been repaid at the beginning of the Specified Four-Quarter Period, would be greater than 2.0:1 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four-Quarter Period) to (x) the Incurrence of such Acquired Debt or such other Debt by the Company Parent or any of its Restricted Subsidiaries and (y) the inclusion inclusion, in EBITDA Consolidated Cash Flow Available for Fixed Charges, of the EBITDA Consolidated Cash Flow Available for Fixed Charges of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(dc) Notwithstanding paragraph (a) aboveSection 4.9(a), the Company Parent and its Restricted Subsidiaries may Incur Permitted Debt.
(ed) For purposes of determining any particular amount of Debt under this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(a) the first paragraph of this Section 4.64.9, the CompanyParent, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt; provided that Debt incurred under the ABL Credit Agreement and the Term Loan Credit Agreement on or before the Issue Date shall be deemed to be incurred under clause (i) of the definition of “Permitted Debt.”
(e) The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this Section 4.9.
(f) Notwithstanding anything to the contrary herein, the maximum amount of Debt that may be outstanding pursuant to this Section 4.9 will not be deemed exceeded due to the results of fluctuations in exchange rates or currency values. For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar equivalent principal amount of Debt denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred.
(g) The Issuers Parent and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees at least to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower prioritypriority or by virtue of structural subordination.
Appears in 1 contract
Samples: Indenture (Bumble Bee Capital Corp.)
Limitation on Incurrence of Debt. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, Incur incur or issue any Debt (including Acquired Debt)) other than Permitted Indebtedness; provided, unlesshowever, immediately that the Company and Restricted Subsidiaries may incur or issue Debt if at the time of such incurrence or issuance each of the following is satisfied:
(a) the ratio of Adjusted FFO Available for Fixed Charges to Adjusted Fixed Charges for the period consisting of the four full consecutive fiscal quarters most recently ended prior to the date on which such additional Debt is to be incurred or issued (after giving pro forma effect to (i) the Incurrence incurrence or issuance of such Debt and (if applicable) the receipt and application of the net proceeds therefrom, including to refinance other Debt, as if such Debt was incurred or issued, and the application of such proceeds occurred, on the first day of such four-quarter period, (aii) the Interest Coverage Ratio incurrence, issuance, repayment or retirement of any other Debt by the Company and its Restricted Subsidiaries for since the last four fiscal quarters for which financial information is available at first day of such four-quarter period as if such Debt was incurred, issued, repaid or retired on the date first day of determination such four-quarter period (except that, in making such computation, the "Specified Period"amount of the Debt under any revolving credit facility shall be computed based upon the average balance of such Debt during such four-quarter period), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be greater than 2.0:1 and (biii) no Default the acquisition (whether by purchase, merger or Event otherwise) or disposition (whether by sale, merger or otherwise) of Default shall have occurred and be continuing at the time any company, entity or as a consequence business acquired or disposed of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, by the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for (including the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designationoperations thereof), as the case may be, and since the application first day of any proceeds therefrom such four-quarter period, as if such Asset Sale or acquisition or designation had disposition occurred on the first day of such four-quarter period) shall be greater than 1.25 to 1;
(b) the Specified Period.Company's Adjusted Total Debt to Capital Ratio as of the end of the quarter most recently ended prior to the date of such incurrence or issuance is less than 4.0 to 1 (after giving pro forma effect to the incurrence or issuance of such Debt and (if applicable) the application of the net proceeds therefrom, including to refinance other Debt, as if such Debt was incurred or issued, and the application of such proceeds occurred, on the last day of such quarter); and
(c) If the Company's Adjusted Senior Debt which to Capital Ratio as of the end of the quarter most recently ended prior to the date of such incurrence or issuance is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by less than 3.5 to 1 (after giving effect (on a pro forma basiseffect to the incurrence or issuance of such Debt and (if applicable) the application of the net proceeds therefrom, including to refinance other Debt, as if such Debt was incurred or issued, and the transaction had occurred at the beginning of the Specified Period) to the Incurrence application of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Personproceeds occurred, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) For purposes of determining any particular amount of Debt under this Section 4.6, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination last day of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debt. For purposes of determining compliance with this Section 4.6, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentencequarter), including under Section 4.6(a) of this Section 4.6, the Company, in its sole discretion, shall classify, and from time to time may reclassify, such item of Debt.
(f) The Issuers and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any Restricted Subsidiary may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (ai) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified Period, Four Quarter Period had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 2.0:1.0 and (bii) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Four Quarter Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisitionAsset Acquisition, Investments, mergers, consolidations, discontinued operations (as determined in accordance with GAAP) or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA Consolidated Cash Flow Available for Fixed Charges and Adjusted Consolidated Interest Expense for the Specified Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition Asset Acquisition, Investments, mergers, consolidations, discontinued operations or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition Asset Acquisition or designation had occurred on the first day of the Specified Four Quarter Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to (x) the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and (y) the inclusion inclusion, in EBITDA the Company’s Consolidated Cash Flow Available for Fixed Charges, of the EBITDA Consolidated Cash Flow Available for Fixed Charges of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (athe provisions of Section 4.09(a) abovehereof, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) For purposes of determining any particular amount of Debt under this Section 4.64.09, (x) the first $25,000,000 of Debt Incurred and outstanding under the Credit Agreement on the Issue Date shall at all times be treated as Incurred pursuant to clause (i)(b1) of the definition of "“Permitted Debt," ” and (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.09, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than above, including categories of Permitted Debt referred to in and under clause (xi) of the preceding sentence), including under Section 4.6(a4.09(a) of this Section 4.6hereof, the Company, in its sole discretion, shall may classify, and from time to time may reclassify, all or any portion of such item of DebtDebt in any manner such that the item of Debt would be permitted to be incurred at the time of such classification or reclassification, as applicable.
(f) The Issuers accrual of interest, the accretion or amortization of original issue discount and the payment of interest or Debt in the form of additional Debt or payment of dividends on Capital Interests in the form of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this Section 4.09.
(g) For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date such Debt was incurred. Notwithstanding any other provision of this Section 4.09, the maximum amount of Debt that the Company or any Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.
(h) The Company and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower prioritypriority or by virtue of structural subordination.
Appears in 1 contract
Samples: Indenture (Fti Consulting Inc)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified Four‑Quarter Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four‑Quarter Period, and any other Debt repaid since the beginning of the Specified Four‑Quarter Period had been repaid at the beginning of the Specified Four‑Quarter Period, would be greater than 2.0:1 2.00:1.00 and (b) no Default or Event of Exhibit 4.1 Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt; provided further, that Restricted Subsidiaries that are not Guarantors may not Incur any Debt pursuant to this paragraph if the Secured Leverage Ratio of the Company and its Restricted Subsidiaries, determined on a pro forma basis as if any such Debt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Four‑Quarter Period had been Incurred and the proceeds thereof had been applied at the beginning of the Four‑Quarter Period, and any other Debt repaid since the beginning of the Four‑Quarter Period had been repaid at the beginning of the Four‑Quarter Period, would be greater than 3.00:1.00.
(b) If, during Notwithstanding the Specified Period or subsequent thereto and prior to the date provisions of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
(cSECTION 4.9(a) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) abovehereof, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(ec) For purposes of determining any particular amount of Debt under this Section 4.6SECTION 4.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.6SECTION 4.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including under Section 4.6(a) categories of this Section 4.6Permitted Debt and SECTION 4.9(a), the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
(f) The Issuers and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; , provided that Debt Incurred under the Debt Facilities on the Issue Date shall at all times be treated as Incurred pursuant to clause (i) of the definition of “Permitted Debt” and may not later be reclassified. The accrual of interest, the accretion or amortization of original issue discount or for the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be considered subordinate deemed to be an Incurrence of Debt or junior in right issuance of payment to any other Debt solely by virtue Capital Interests for purposes of being unsecured or secured to a greater or lesser extent or with greater or lower prioritythis SECTION 4.9.
Appears in 1 contract
Samples: Indenture (Moog Inc.)
Limitation on Incurrence of Debt. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, Incur any Debt (including Acquired Debt), unless, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefromthereof, (a) the Interest Consolidated EBITDA Coverage Ratio of the Company and its Restricted Subsidiaries for the last four full fiscal quarters for which internal financial information is statements are available at immediately preceding the date Incurrence of determination (the "Specified Period")such Debt, determined calculated on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been received and so applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Periodfour full fiscal quarters, would be greater than 2.0:1 and (b) no Default 2.50 to 1.0 if such date is on or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to December 31, 1998, 2.75 to 1.0 if such date is after December 31, 1998 and on or prior to December 31, 1999 and 3.0 to 1.0 if thereafter. Without regard to the date of determinationforegoing limitations, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary may Incur the following Debt:
(i) Debt under the Credit Facility in an aggregate principal amount at any one time outstanding not to exceed $450.0 million less (A) principal payments on any term loan facility under the Credit Facility required to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for made by the Specified Period shall be calculated on a pro forma basis giving terms of the Credit Facility as in effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day date of this Indenture and actually made and (B) any amounts by which the Working Capital Facility commitments are permanently reduced by the terms of the Specified PeriodCredit Facility as in effect on the date of this Indenture; provided, that Clause (B) shall not apply to a refinancing or refunding of the Working Capital Facility so long as such refinancing or refunding complies with Clause (vii) below.
(cii) If Debt evidenced by the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Securities;
(iii) Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) For purposes of determining any particular amount of Debt under this Section 4.6, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debt. For purposes of determining compliance with this Section 4.6, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above Subsidiary (other than Debt referred to in clause Clauses (i) and (ii) above) outstanding on the date of this Indenture;
(iv) Debt owed by the Company to any Wholly Owned Restricted Subsidiary or Debt owed by a Wholly Owned Restricted Subsidiary to the Company; provided, however, that (a) any such Debt owing by the Company to a Wholly Owned Restricted Subsidiary shall be Subordinated Debt and (b) upon either (1) the transfer or other disposition by such Wholly Owned Restricted Subsidiary or the Company of any Debt so permitted to a Person other than the Company or another Wholly Owned Restricted Subsidiary or (2) the issuance (other than directors' qualifying shares), sale, lease, transfer or other disposition of shares of Capital Stock (including by consolidation or merger) of such Wholly Owned Restricted Subsidiary to a Person other than the Company or another such Wholly Owned Restricted Subsidiary, the provisions of this Clause (iv) shall no longer be applicable to such Debt and such Debt shall be deemed to have been Incurred at the time of such transfer or other disposition or such issuance, sale, lease, transfer or other disposition;
(v) Obligations under Interest Rate Agreements in respect of Debt permitted to be Incurred by the Company pursuant to this Indenture to the extent the notional principal amount of such Interest Rate Agreements does not exceed the aggregate principal amount of the Debt to which such Interest Rate Agreements relate; provided, however, that (A) such Interest Rate Agreements are used solely to hedge the related Debt and (B) the profits and losses with respect to the Interest Rate Agreements are included as interest expense under generally accepted accounting principles;
(vi) Debt Incurred by the Company or any Restricted Subsidiary in respect of (x) bid or performance bonds entered into in favor of governmental entities or (y) surety or appeal bonds which, in each case, are entered into in the ordinary course of business;
(vii) Debt Incurred to renew, extend, refinance or refund any outstanding Debt permitted by Clauses (i), (ii) and (iii) above or this Clause (vii); provided, however, that such Debt does not exceed the principal amount of Debt (or, in the case of Debt issued at a discount from its principal amount, the amount then payable upon an acceleration thereof) so renewed, extended, refinanced or refunded (plus accrued interest, fees, expenses, premiums and other amounts payable in connection therewith in an amount not in excess of 1% of the preceding sentence)principal amount (or, including under Section 4.6(ain the case of Debt issued at a discount, the amount payable upon acceleration) of this Section 4.6the Debt being renewed, extended, refinanced or refunded); and provided further, that (A) Debt the Company, in its sole discretion, shall classify, and from time proceeds of which are used to time may reclassify, such item of Debt.
(f) The Issuers and any Guarantor will not Incur any refinance or refund Debt that pursuant which is Pari Passu to its terms the Securities or Debt which is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and Securities shall only be permitted if in the Note Guarantees case of any refinancing or refunding of Debt which is Pari Passu to the same extentSecurities, the refinancing or refunding Debt is made Pari Passu to the Securities or subordinated to the Securities, and, in the case of any refinancing or refunding of Debt which is subordinated to the Securities, the refinancing or refunding Debt is made subordinate to the Securities on terms at least as favorable to the Holders of Securities as those contained in the documentation governing the Debt being refinanced or refunded and (B) such refinancing or refunding Debt (x) does not have a final scheduled maturity earlier than the final scheduled maturity of the refinanced or refunded Debt or permit redemption or other retirement of such Debt (including pursuant to an offer to purchase by the Company) at the option of the holder thereof prior to the final stated maturity of the Debt being refinanced or refunded, other than a redemption or other retirement at the option of the holder of such Debt on terms at least as favorable to the Holders of the Securities as those contained in the Debt being refinanced or refunded and (y) does not have a Weighted Average Life less than the Weighted Average Life of the Debt being refinanced or refunded; provided and
(viii) Debt in addition to that Debt will not otherwise permitted to be considered subordinate or junior in right of payment Incurred pursuant to Clauses (i) through (vii) above, which, together with any other outstanding Debt solely by virtue Incurred pursuant to this Clause (viii), has an aggregate principal amount not in excess of being unsecured or secured to a greater or lesser extent or with greater or lower priority$20 million at any one time outstanding.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination would be greater than 2.0 to 1.0 (the "Specified Period"), “Ratio Test”) determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning (including a pro forma application of the Specified Period, had been Incurred and the net proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be greater than 2.0:1 therefrom) and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
; provided further that the aggregate amount of Debt (bincluding Acquired Debt) If, during the Specified Period or subsequent thereto and prior that may be Incurred pursuant to the date of determination, the Company or any of its foregoing by Restricted Subsidiaries that are not Guarantors shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred not exceed $20 0 million at the beginning time of Incurrence at any one time outstanding. Notwithstanding the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) For purposes of determining any particular amount of Debt under this Section 4.6, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debt. For purposes of determining compliance with this Section 4.64.9, (A) Debt need not be Incurred solely by reference to one category of Permitted Debt described in clauses of the definition thereof or pursuant to the first paragraph of this covenant but is permitted to be Incurred in part under any combination thereof and (B) in the event that an item of Debt (or any portion thereof) meets the criteria of one or more than one of the types categories of Permitted Debt described above (other than Debt referred to in clause (x) the clauses of the preceding sentence), including under Section 4.6(a) definition thereof or is entitled to be Incurred pursuant to the first paragraph of this Section 4.64.9, the CompanyCompany shall, in its sole discretion, shall classify, and from time to time may or reclassify, or later divide, classify or reclassify, such item of Debt (or any portion thereof) in any manner that complies with this covenant and will only be required to include the amount and type of such item of Debt in one of the Permitted Debt clauses or the first paragraph hereof and such item of Debt 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, amortization of original issue discount, the payment of interest in the form of additional Debt with the same terms or in the form of common stock of the Company, the payment of dividends on Capital Interests in the form of additional Capital Interests of the same class, the accretion of original issue discount or liquidation preference and increases in the amount of Debt outstanding solely as a result of fluctuations in the exchange rate of currencies or increases in the value of property securing Debt will not be deemed to be an Incurrence of Debt for purposes of this Section 4.9. Guarantees of or obligations in respect of letters of credit relating to Debt which is otherwise included in the determination of a particular amount of Debt shall not be included in the determination of such amount of Debt.
; provided, however, that the Incurrence of the Debt represented by such guarantee or letter of credit, as the case may be, was in compliance with this covenant. For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term debt, or first committed or first Incurred (f) whichever yields the lower U.S. dollar equivalent), in the case of revolving credit debt; provided that if such Debt is Incurred to refinance other Debt 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 refinancing Debt does not exceed the principal amount of such Debt being refinanced. Notwithstanding any other provision of this covenant, the maximum amount of Debt that the Company and its Restricted Subsidiaries may Incur pursuant to this covenant shall not be deemed to be exceeded, with respect to any outstanding Debt, solely as a result of fluctuations in the exchange rate of currencies. The Issuers and principal amount of any Debt Incurred to refinance other Debt, if Incurred in a different currency from the Debt being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Debt is denominated that is in effect on the date of such refinancing. Neither the Company nor any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.
Appears in 1 contract
Samples: Indenture (American Woodmark Corp)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified PeriodFour‑Quarter Period (as defined below), had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four‑Quarter Period, and any other Debt repaid since the beginning of the Specified Four‑Quarter Period had been repaid at the beginning of the Specified Four‑Quarter Period, would be 509335-2181-14734-Active.16594683.10 greater than 2.0:1 2.00:1.00 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt; provided further, that Restricted Subsidiaries that are not Guarantors may not Incur any Debt pursuant to this paragraph if the Secured Leverage Ratio of the Company and its Restricted Subsidiaries, determined on a pro forma basis as if any such Debt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Four‑Quarter Period (as defined below) had been Incurred and the proceeds thereof had been applied at the beginning of the Four‑Quarter Period, and any other Debt repaid since the beginning of the Four‑Quarter Period had been repaid at the beginning of the Four‑Quarter Period, would be greater than 3.00:1.00.
(b) If, during Notwithstanding the Specified Period or subsequent thereto and prior to the date provisions of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
(cSECTION 4.9(a) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) abovehereof, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(ec) For purposes of determining any particular amount of Debt under this Section 4.6SECTION 4.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.6SECTION 4.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including under Section 4.6(a) categories of this Section 4.6Permitted Debt and SECTION 4.9(a), the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
(f) The Issuers and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; , provided that Debt Incurred under the Credit Facilities on the Issue Date shall at all times be treated as Incurred pursuant to clause (i) of the definition of “Permitted Debt”. The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be considered subordinate deemed to be an Incurrence of Debt or junior in right issuance of payment to any other Debt solely by virtue Capital Interests for purposes of being unsecured or secured to a greater or lesser extent or with greater or lower prioritythis SECTION 4.9.
Appears in 1 contract
Samples: Indenture (Moog Inc.)
Limitation on Incurrence of Debt. (a) The Company will notmay not Incur, and will may not permit any of its Restricted Subsidiaries toto Incur, Incur any Debt (including Acquired Debt); PROVIDED, unlessHOWEVER, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, that (a) the Interest Coverage Ratio Company may Incur any Debt and (b) the Company may permit a Subsidiary to Incur Acquired Debt, if, in either case, immediately thereafter the ratio of (A) the aggregate principal amount of Debt of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at outstanding as of the date of determination such Incurrence to (B) Pro Forma Consolidated Cash Flow for the "Specified Period")most recently ended full fiscal quarter multiplied by four, determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Periodsuch fiscal quarter, would be less than 6.0 to 1 but greater than 2.0:1 and zero. Notwithstanding the foregoing limitation, the Company may Incur and, as applicable, may permit its Subsidiaries to Incur, without duplication, the following Debt: (bi) no Default or Event Debt of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any Subsidiary under the Credit Facility in an aggregate principal amount not to exceed $150.0 million at any one time outstanding; (ii) Guarantees by Subsidiaries of its Restricted Subsidiaries shall have engaged Debt under the Credit Facility Incurred by the Company in accordance with this covenant; (iii) Debt of the Company evidenced by the Notes; (iv) Debt owed by the Company to any Asset Sale wholly owned Subsidiary of the Company or acquisition, or shall have designated owed by any Restricted wholly owned Subsidiary of the Company to be an Unrestricted Subsidiary the Company or any Unrestricted other wholly owned Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
Company (c) If the but only so long as such Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt held by the Company or any such wholly owned Subsidiary); (v) Debt outstanding on the date the Notes are originally issued under the Indenture; (vi) Debt 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 Debt is extinguished within two Business Days of its Restricted Subsidiaries Incurrence; (vii) Refinancing Debt; and the inclusion in EBITDA (viii) renewals of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
Guarantees permitted by clause (d) Notwithstanding paragraph (aii) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under this Section 4.6covenant, Guarantees of (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens or obligations with respect to letters of credit supporting supporting) Debt otherwise included in the determination of such particular amount shall not also be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes the purpose of determining compliance with this Section 4.6covenant, (A) in the event that an item of Debt meets the criteria of more than one of the types of Debt described in the above (other than Debt referred to in clause (x) of the preceding sentence), including under Section 4.6(a) of this Section 4.6clauses, the Company, in its sole discretion, shall classify, and from time to time may reclassify, classify such item of Debt.
(f) The Issuers Debt and any Guarantor will not Incur any Debt that pursuant only be required to its terms is subordinate or junior in right include the amount and type of payment to any Debt unless such Debt in one of such clauses; and (B) the amount of Debt issued at a price which is subordinated in right of payment less than the principal amount thereof shall be equal to the Notes and amount of the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior liability in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or respect thereof determined in accordance with greater or lower priorityGAAP.
Appears in 1 contract
Samples: Indenture (Metrocall Inc)
Limitation on Incurrence of Debt. (a) The Company Parent will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that Parent and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company Parent and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified Four Quarter Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 and (b) no Default is at least 2.00:1.00; provided, further, that the aggregate principal amount of Debt Incurred by Restricted Subsidiaries that are not the Issuer or Event of Default Guarantors pursuant to this paragraph shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) not exceed $50.0 million. If, during the Specified Four Quarter Period or subsequent thereto and prior to the date of determination, the Company Parent or any of its Restricted Subsidiaries shall have engaged in any Asset Sale asset sale or asset acquisition, Restricted Payments, investments, mergers, consolidations, discontinued operations (as determined in accordance with GAAP) or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA Consolidated Cash Flow Available for Fixed Charges and Adjusted Consolidated Interest Expense for the Specified Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale asset sale or acquisition asset acquisition, Restricted Payments, investments, mergers, consolidations, discontinued operations or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition Asset Acquisition or designation had occurred on the first day of the Specified Four Quarter Period.
(c) . If the Debt which that is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to the Incurrence of such Acquired Debt or such other Debt by the Company Parent or any of its Restricted Subsidiaries and the inclusion inclusion, in EBITDA Consolidated Cash Flow Available for Fixed Charges, of the EBITDA Consolidated Cash Flow Available for Fixed Charges of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) . Notwithstanding the first paragraph (a) above, the Company Parent and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall initially be treated as Incurred pursuant to clause (i)(bi) of the definition of "“Permitted Debt," ” and may not later be re-classified and (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(a) the first paragraph of this Section 4.64.9, the CompanyParent, in its sole discretion, shall divide and classify, and from time to time may divide and reclassify, all or any portion of such item of Debt.
(f) . The Issuers accrual of interest, the accretion or amortization of accreted value or original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this Section 4.9. The Issuer and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.
Appears in 1 contract
Samples: Indenture (Ryerson Holding Corp)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any Restricted Subsidiary may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (ai) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified Four Quarter Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 2.0:1.0 and (bii) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Four Quarter Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale Sales, Asset Acquisitions, Investments, mergers, consolidations or acquisition, discontinued operations (as determined in accordance with GAAP) or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, Consolidated Operating EBITDA and Adjusted Consolidated Interest Expense for the Specified Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale Sales, Asset Acquisitions, Investments, mergers, consolidations or acquisition discontinued operations or designationdesignations, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation events had occurred on the first day of the Specified Four Quarter Period.
(c) If the Debt which that is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to (x) the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and (y) the inclusion inclusion, in EBITDA the Company’s Consolidated Operating EBITDA, of the Consolidated Operating EBITDA of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (athe provisions of Section 4.09(a) abovehereof, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) For purposes of determining any particular amount of Debt under this Section 4.64.09, (x) the first $25,000,000 of Debt Incurred outstanding under the Credit Agreement on the Issue Start Date shall at all times be treated as Incurred pursuant to clause (i)(b1) of the definition of "“Permitted Debt," ” and (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.09, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(a4.09(a)(i) of this Section 4.6hereof, the Company, in its sole discretion, shall may classify, and from time to time may reclassify, all or any portion of such item of DebtDebt in any manner such that the item of Debt would be permitted to be incurred at the time of such classification or reclassification, as applicable.
(f) The Issuers accrual of interest or dividends, the accretion of principal, accreted value or liquidation preference, the amortization of original issue discount or debt discount, the payment of interest on Debt in the form of additional Debt, the payment of dividends on Capital Interests in the form of additional shares of Capital Interests with the same terms, the obligation to pay a premium in respect of Debt or a Capital Interest arising in connection with the issuance of a notice of redemption or the making of a mandatory change of control offer or asset sale offer for such Debt or Capital Interest, increases in the amount of Debt outstanding solely as a result of fluctuations in exchange rates or currency values, and unrealized losses or charges in respect of Hedging Obligations or Swap Contracts, in each case, will be deemed not to be an Incurrence of Debt or an issuance of Capital Interests for purposes of this Section 4.09.
(g) For purposes of determining compliance with any Guarantor will not Incur U.S. dollar-denominated restriction on the incurrence of Debt or any other covenant, limitation or ratio in this Indenture, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date such Debt was incurred. Notwithstanding any other provision of this Indenture, the maximum amount of Debt that the Company or any Restricted Subsidiary may incur pursuant to its terms is subordinate this Section 4.09 shall not be deemed to be exceeded, nor shall any other covenant, limitation or junior ratio in right this Indenture be deemed to be breached or exceeded solely as a result of payment to any Debt unless such Debt is subordinated fluctuations in right of payment to the Notes and the Note Guarantees to the same extent; provided that exchange rates or currency values.
(h) Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured unsecured, secured with a subset of the collateral securing such other Debt or with different collateral, secured to a greater or lesser extent or secured with greater or lower priority, by virtue of structural subordination, by virtue of maturity date, order of payment or order of application of funds, or by virtue of not being guaranteed by all guarantors of such other Debt, and any subordination in right of payment must be pursuant to a written agreement or instrument.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt, and the Issuer will not permit any of its Restricted Subsidiaries to issue any Preferred Interests; provided, that the Issuer and any of its Restricted Subsidiaries may Incur any Debt (including Acquired Debt)and any Restricted Subsidiary may issue Preferred Interests, unlessin each case, if, immediately after giving effect to the Incurrence of such Debt or issuance of such Preferred Interests and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company Issuer and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such DebtDebt or any Preferred Interests (including any other Debt or Preferred Interests being Incurred or issued contemporaneously), and any other Debt or Preferred Interests Incurred or issued since the beginning of the Specified Four Quarter Period, had been Incurred or issued, as the case may be and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, ) would be greater than 2.0:1 at least 2.0 to 1.0 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) IfNotwithstanding Section 4.11(a), during the Specified Period Issuer and its Restricted Subsidiaries may Incur the following items of Debt (“Permitted Debt”):
(1) Debt Incurred pursuant to any Credit Facilities in an aggregate principal amount outstanding, together with any Permitted Refinancing Debt Incurred pursuant to clause (16) below to renew, refund, refinance, replace, defease or subsequent thereto and prior discharge any Debt Incurred pursuant to the this clause (1), not to exceed, as of any date of determinationIncurrence pursuant to this clause (1), the Company greater of $2.5 billion and an amount of Debt such that at the time of Incurrence and after giving pro forma effect thereto, the Consolidated Secured Leverage Ratio of the Issuer would be no greater than 4.0 to 1.0;
(2) Debt under the Notes issued on the Issue Date;
(3) Note Guarantees issued on the Issue Date;
(4) Debt of the Issuer or any Restricted Subsidiary outstanding on the Issue Date (other than pursuant to clause (1), (2) or (3) above);
(5) the Incurrence by the Issuer or any of its Restricted Subsidiaries shall have engaged of intercompany Debt between or among the Issuer and any of its Restricted Subsidiaries; provided, however, that:
(i) any subsequent issuance or transfer of equity interests that results in any Asset Sale such Debt being held by a Person other than the Issuer or acquisition, or shall have designated any a Restricted Subsidiary of the Issuer and
(ii) any sale or other transfer of any such Debt to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Person that is neither the Issuer nor a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for will be deemed, in each case, to constitute an Incurrence of such Debt by the Specified Period shall be calculated on a pro forma basis giving effect to Issuer or such Asset Sale or acquisition or designationRestricted Subsidiary, as the case may be, that was not permitted by this clause (5);
(6) guarantees by the Issuer or any Restricted Subsidiary of Debt of the Issuer or any Restricted Subsidiary; provided that (i) such Debt is Permitted Debt or is otherwise Incurred in accordance with this Section 4.11, (ii) if the Debt being guaranteed is subordinated to the Notes, such guarantees are subordinated to the Notes to the same extent as the Debt being guaranteed and (iii) in the case of any such guarantee by a Restricted Subsidiary that is not a Guarantor, such guarantee is Incurred in accordance with Section 4.10 herein;
(7) Debt Incurred in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance and self-insurance obligations, and, for the avoidance of doubt, indemnity, bid, performance, warranty, release, appeal, surety and similar bonds, bank guaranties, letters of credit for operating purposes and completion guarantees provided or Incurred (including guarantees thereof) by the Issuer or a Restricted Subsidiary in the ordinary course of business, including those Incurred to secure health, safety and environmental obligations in the ordinary course of business;
(8) Debt under Hedging Obligations;
(9) Debt of the Issuer or any Restricted Subsidiary pursuant to (i) Capital Lease Obligations, Synthetic Lease Obligations or Purchase Money Debt and Attributable Debt in respect of Sale and Leaseback transactions; provided that in each case (x) such Debt is Incurred by such Person at the time of, or not later than 120 days after, the acquisition, construction, development or improvement by such Person of the property so financed and (y) such Debt does not exceed the purchase price of the property (or the cost of constructing, developing or improving the same) so financed and (ii) Sale and Leaseback transactions the Debt with respect to which does not exceed $125.0 million in the aggregate principal amount outstanding at any time of Incurrence thereof;
(10) Debt arising from agreements of the Issuer or a Restricted Subsidiary providing for indemnification, contribution, earnout, adjustment of purchase price or similar obligations, in each case, Incurred or assumed in connection with the acquisition or disposition of any business, assets or Capital Interests of a Restricted Subsidiary otherwise permitted under this Indenture;
(11) the issuance by any of the Issuer’s Restricted Subsidiaries to the Issuer or to any of its Restricted Subsidiaries of shares of Preferred Interests; provided, however, that: (i) any subsequent issuance or transfer of Capital Interests that results in any such Preferred Interests being held by a Person other than the Issuer or a Restricted Subsidiary; and (ii) any sale or other transfer of any such Preferred Interests to a Person that is not either the Issuer or a Restricted Subsidiary; shall be deemed, in each case, to constitute an issuance of such Preferred Interests by such Restricted Subsidiary that was not permitted by this clause (11);
(12) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Debt is extinguished within five Business Days of Incurrence and Debt arising from negative account balances in cash pooling arrangements arising in the ordinary course of business;
(13) obligations of the Issuer or its Restricted Subsidiaries in respect of customer advances received and held in the ordinary course of business;
(14) Debt constituting credit support for third party customer financing in the ordinary course of business;
(15) Debt of the Issuer or any Restricted Subsidiary in an aggregate principal amount, together with all Permitted Refinancing Debt Incurred pursuant to clause (16) to renew, refund, refinance, replace, defease or discharge any Debt Incurred pursuant to this clause (15), not to exceed, as of any date of Incurrence pursuant to this clause (15), the greater of $500.0 million and 10.0% of the Consolidated Total Assets of the Issuer and its Restricted Subsidiaries;
(16) the Incurrence by the Issuer or any of its Restricted Subsidiaries of Permitted Refinancing Debt in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Debt (other than intercompany Debt) that was permitted by this Indenture to be Incurred under Section 4.11(a) or clauses (1), (2), (3), (4), (9), (15), and (17) and this clause (16) of Section 4.11(b);
(17) the Incurrence of Acquired Debt; provided that after giving effect to such acquisition or merger, either (x)(i) the Issuer would be permitted to Incur at least $1.00 of additional Debt under Section 4.11(a) or (ii) the Consolidated Fixed Charge Coverage Ratio of the Issuer and the application of any proceeds therefrom as if Restricted Subsidiaries is equal to or greater than immediately prior to such Asset Sale or acquisition or designation had occurred on merger or (y) such Debt or Preferred Interests (i) is not Secured Debt and, if constituting Debt, is subordinated in right of payment to the first day Notes and the guarantees of the Specified PeriodNotes, (ii) is not Incurred while a Default exists and no Default shall result therefrom, (iii) does not mature and does not require any payment of principal prior to the final maturity of the Notes, and (iv) is not Incurred in contemplation of such acquisition or merger;
(18) Debt of the Issuer or any Restricted Subsidiary of the Issuer supported by a letter of credit or bank guarantee issued pursuant to Credit Facilities in a principal amount not in excess of the stated amount of such letter of credit;
(19) Debt consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business; and
(20) Debt Incurred by a Receivables Subsidiary in a Receivables Facility that is not recourse to the Issuer or any Restricted Subsidiary of the Issuer other than a Receivables Subsidiary (except for Standard Securitization Undertakings).
(c) Notwithstanding the above, Restricted Subsidiaries that are not Guarantors may not Incur Debt or issue Preferred Interests pursuant to Section 4.11(a) or clause (1), (15) or (17) (but only with respect to Debt Incurred in contemplation of an acquisition) of Section 4.11(b), including in each case Permitted Refinancing Debt thereof, if such Incurrence would result in the aggregate outstanding amount of Debt or Preferred Interests of Restricted Subsidiaries that are not Guarantors Incurred pursuant to such specified provisions of this Section 4.11 or the definition of “Permitted Debt”, at any time of Incurrence thereunder, exceeding the greater of $500.0 million and 10.0% of Consolidated Total Assets of the Issuer and its Restricted Subsidiaries (the “Non-Guarantor Debt Basket”), provided that any Permitted Refinancing Debt pursuant to clause (16) of Section 4.11(b) in respect of Debt or Preferred Interests of Restricted Subsidiaries that are not Guarantors Incurred pursuant to such previously specified provisions of this covenant (or successive Permitted Refinancing Debt in respect thereof) may be Incurred under the Non-Guarantor Debt Basket even if such Incurrence of Permitted Refinancing Debt would result in the Non-Guarantor Debt Basket being exceeded at the time of such Incurrence, to the extent such excess results from a reduction in Consolidated Total Assets subsequent to the date of any prior permitted Incurrence of Debt or Preferred Interests under the Non-Guarantor Debt Basket (provided that, for the avoidance of doubt, any such Permitted Refinancing Debt shall reduce amounts available under the Non-Guarantor Debt Basket so long as such Permitted Refinancing Debt remains outstanding), and, provided, further that, notwithstanding the foregoing, Restricted Subsidiaries that are not Guarantors may Incur Debt or issue Preferred Interests pursuant to such specified provisions of this Section 4.11 and the definition of “Permitted Debt” in amounts that result in exceeding the available amount of the Non-Guarantor Debt Basket, but such excess amounts shall be deemed to constitute Secured Debt secured by Liens Incurred pursuant to clause (2) or (27) (at the Issuer’s election) of the definition of “Permitted Liens” and shall not be permitted to be Incurred to the extent such Incurrence would result in the limitations in those clauses of “Permitted Liens” being exceeded.
(d) If the Debt which is the subject of a determination under this Section 4.6 4.11 is Acquired Debt, or Debt Incurred in connection with the simultaneous substantially contemporaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio determination shall be determined made by giving effect (on a pro forma basis, basis and giving effect to Pro Forma Cost Savings as if the transaction they had occurred at the beginning of the Specified Four Quarter Period) to (x) the Incurrence of such Acquired Debt or such other Debt by the Company Issuer or any of its Restricted Subsidiaries and (y) the inclusion inclusion, in EBITDA Consolidated Cash Flow, of the EBITDA Consolidated Cash Flow of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) For purposes of determining any particular amount of Debt under this Section 4.64.11, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.11, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than provided above, including categories of Permitted Debt referred to in clause (x) of the preceding sentenceand under Section 4.11(a), including under Section 4.6(a) of this Section 4.6, the CompanyIssuer, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of DebtDebt in any manner that complies with this Indenture.
(f) For purposes of determining compliance of any non-U.S. dollar-denominated Debt with any U.S. dollar-denominated restriction on the Incurrence of Debt in this Section 4.11, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred (or the date such Debt was first committed, in the case of revolving credit Debt for which the relevant commitment is denominated in a foreign currency); provided, however, that if any such Debt that is denominated in a foreign currency is subject at the time of such Incurrence to a currency hedging agreement with respect to U.S. dollars covering principal payable on such Debt, the principal amount of such Debt expressed in U.S. dollars will be adjusted to take into account the effect of such agreement; provided, further, that if such Debt is Incurred to refinance other Debt denominated in the same or different 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 refinancing Debt does not exceed the principal amount of such indebtedness being refinanced.
(g) The Issuers accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt for purposes of this Section 4.11.
(h) The Issuer and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees guarantees of the Notes at least to the same extent, except as expressly permitted by Section 4.10 hereof; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower prioritypriority or by virtue of structural subordination.
(i) Debt under the Credit Agreement outstanding on the Issue Date will initially be deemed to have been Incurred on such date in reliance on the exception provided by Section 4.11(b)(1).
Appears in 1 contract
Samples: Indenture (ESAB Corp)
Limitation on Incurrence of Debt. (a) The Company Holdings will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt); provided that Holdings, unlessthe Issuer and any of its Restricted Subsidiaries (other than any Foreign Restricted Subsidiary) may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company Holdings and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such Debt (including any other Debt, other than Debt Incurred under the revolving portion of a Credit Facility, being Incurred contemporaneously) and any other Debt (other than Debt Incurred under the revolving portion of the Credit Facility) Incurred since the beginning of the Specified Period, Four Quarter Period had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid (other than Debt Incurred under the revolving portion of a Credit Facility) since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 2.25 to 1.00 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
(c) . If the Debt which is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to (x) the Incurrence of such Acquired Debt or such other Debt by the Company Holdings or any of its Restricted Subsidiaries and (y) the inclusion inclusion, in EBITDA Consolidated Cash Flow Available for Fixed Charges, of the EBITDA Consolidated Cash Flow Available for Fixed Charges of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) . Notwithstanding the first paragraph (a) above, the Company Holdings and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred outstanding under the Credit Agreement on the Issue Date shall at all times be treated as Incurred pursuant to clause (i)(ba) of the definition of "“Permitted Debt," ” and (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(apart (a) in the first paragraph of this Section 4.64.9, the CompanyIssuer, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
(f) The Issuers and . For purposes of determining compliance of any Guarantor will not Incur any non-U.S. dollar-denominated Debt with this Section 4.9, the amount outstanding under U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of the term Debt, or first committed, in the cases of the revolving credit Debt, provided, however, that pursuant to its terms is subordinate or junior in right of payment to any Debt unless if such Debt is subordinated Incurred to Refinance other Debt denominated in right the same or different 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 payment such Refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the Notes principal amount of such Refinancing Debt does not exceed the principal amount of such indebtedness being Refinanced. The accrual of interest, the accretion or amortization of original issue discount and the Note Guarantees to payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same extent; provided that Debt terms will not be considered subordinate deemed to be an Incurrence of Debt or junior in right issuance of payment to any other Debt solely by virtue Capital Interests for purposes of being unsecured or secured to a greater or lesser extent or with greater or lower prioritythis Section 4.9.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided the Company and the Guarantors may Incur Debt so long as, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified PeriodFour Quarter Period (other than any Debt Incurred under the revolving portion of a credit agreement), had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 2.00:1 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) . If, during the Specified Four Quarter Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, Asset Acquisition or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA Consolidated Cash Flow Available for Fixed Charges and Adjusted Consolidated Interest Expense for the Specified Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition Asset Acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition Asset Acquisition or designation had occurred on the first day of the Specified Four Quarter Period.
(c) . If the Debt which is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion inclusion, in EBITDA Consolidated Cash Flow Available for Fixed Charges, of the EBITDA Consolidated Cash Flow Avail- able for Fixed Charges of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) . Notwithstanding the first paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For the purposes of determining compliance with this Section 4.64.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(apart (a) in the first paragraph of this Section 4.64.9, the Company, in its sole discretion, shall may classify, and from time to time may reclassify, all or any portion of such item of Debt.
(f) . The Issuers accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Stock in the form of additional shares of Capital Stock with the same terms will not be deemed to be an Incurrence of Debt or issuance of Capital Stock for purposes of this Section 4.9. The Company and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.
Appears in 1 contract
Samples: Indenture (American Pacific Corp)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified PeriodFour-Quarter Period (as defined below), had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four-Quarter Period, and any other Debt repaid since the beginning of the Specified Four-Quarter Period had been repaid at the beginning of the Specified Four-Quarter Period, would be greater than 2.0:1 2.25:1 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
(c) . If the Debt which is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four-Quarter Period) to (x) the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and (y) the inclusion inclusion, in EBITDA Consolidated Cash Flow Available for Fixed Charges, of the EBITDA Consolidated Cash Flow Available for Fixed Charges of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) . Notwithstanding the first paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall at all times be treated as Incurred pursuant to clause (i)(bi) of the definition of "“Permitted Debt," ” and (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(apart (a) in the first paragraph of this Section 4.64.9, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
(f) . The Issuers and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate accrual of interest, the accretion or junior in right amortization of payment to any Debt unless such Debt is subordinated in right of payment to the Notes original issue discount and the Note Guarantees to payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same extent; provided that Debt terms will not be considered subordinate deemed to be an Incurrence of Debt or junior in right issuance of payment to any other Debt solely by virtue Capital Interests for purposes of being unsecured or secured to a greater or lesser extent or with greater or lower prioritythis Section 4.9.
Appears in 1 contract
Samples: Indenture (Triumph Group Inc /)
Limitation on Incurrence of Debt. (a) The Company will Tembec Inc. shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any Guarantor may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, Tembec Inc. would be greater than 2.0:1 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior 2.00 to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on 1.0. Notwithstanding the first day paragraph of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt4.9, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above, the Company Tembec Inc. and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under compliance with this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular the amount of Debt shall not be included and (zy) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debt. For purposes of determining compliance with this Section 4.6, in the event that an item of Debt meets the criteria of more than one of the types categories of Permitted Debt described above (other than Debt referred and/or would have been permitted to in clause (x) of have been Incurred pursuant to the preceding sentence), including under Section 4.6(a) first paragraph of this Section 4.64.9, the Company, in its sole discretion, shall may classify, and from time to time may reclassify, all or any portion of such item of Debt as being within one or more of such categories or as being Debt permitted to be Incurred pursuant to the first paragraph of this Section 4.9. The accrual of interest and dividends, the accretion of accreted value, the amortization of original issue discount, the payment of interest on any Debt in the form of additional Debt.
, the payment of dividends on Equity Interests in the forms of additional shares of Equity Interests with the same terms, and changes to amounts outstanding in respect of Hedging Obligations solely as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder will not be deemed to be an Incurrence of Debt. For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term Debt, or first committed, in the case of revolving credit Debt; provided that if such Debt is Incurred to refinance other Debt 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 Refinancing Debt does not exceed the principal amount of such Debt being refinanced (f) The Issuers plus interest or premiums, defeasance costs and fees and expenses incurred in connection therewith). Notwithstanding any other provision of this covenant, any increase in the United States dollar equivalent of outstanding Debt of Tembec Inc. or any of its Restricted Subsidiaries denominated in a currency other than United States dollars resulting from fluctuations in the exchange values of currencies will not be considered to be an Incurrence of Debt for purposes of this Section 4.9; provided that the amount of Debt of Tembec Inc. and its Restricted Subsidiaries outstanding at any time for purposes of covenant compliance will be the United States dollar equivalent of all such Debt of Tembec Inc. and its Restricted Subsidiaries outstanding at such time. Tembec Inc. will not, and will not permit the Company or any Guarantor will not Incur to incur, any Debt that pursuant to its terms is subordinate or junior in right of payment to any other Debt of Tembec Inc., the Company or such Guarantor, unless such Debt is also subordinated in right of payment to the Notes and or the Note Guarantees to Guarantee of such Guarantor, as the same extentcase may be, on substantially identical terms; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or by virtue of being secured to on a greater junior lien or lesser extent or with greater or lower prioritypriority basis.
Appears in 1 contract
Samples: Indenture (Tembec Industries Inc)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified PeriodFour Quarter Period (as defined in the definition of “Consolidated Fixed Charge Coverage Ratio”) (provided that any Debt Incurred under the revolving portion of a credit agreement shall be calculated (x) on an annualized basis for periods prior to the one year anniversary of the Issue Date and (y) thereafter, only on such date), had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 (x) on or prior to March 15, 2010, 2.25:1, and (y) thereafter, 2.50:1, and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) . If, during the Specified Four Quarter Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisitionAsset Acquisition, Investments, mergers, consolidations, discontinued operations (as determined in accordance with GAAP) or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA Consolidated Cash Flow Available for Fixed Charges and Adjusted Consolidated Interest Expense for the Specified Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition Asset Acquisition, Investments, mergers, consolidations, discontinued operations or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition Asset Acquisition or designation had occurred on the first day of the Specified Four Quarter Period.
(c) . If the Debt which is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to (x) the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and (y) the inclusion inclusion, in EBITDA Consolidated Cash Flow Available for Fixed Charges, of the EBITDA Consolidated Cash Flow Available for Fixed Charges of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) . Notwithstanding the first paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall at all times be treated as Incurred pursuant to clause (i)(bi) of the definition of "“Permitted Debt," ” and (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(a) the first paragraph of this Section 4.64.9, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
(f) . The Issuers accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this Section 4.9. The Company and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower prioritypriority or by virtue of structural subordination.
Appears in 1 contract
Samples: Indenture (Rock-Tenn CO)
Limitation on Incurrence of Debt. (a) The Company Issuer will not, and will not permit any of its the Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Issuer and any of the Restricted Subsidiaries that is a Guarantor may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company Issuer and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be greater than 2.0:1 2.0:1.0 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above, the Company Issuer and the Restricted Subsidiaries may Incur “Permitted Debt” as follows:
(i) Debt incurred pursuant to, and the issuance or creation of letters of credit and bankers’ acceptances under or in connection with (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the maximum potential liability of the Issuer and its Restricted Subsidiaries may Incur Permitted Debt.
(e) For purposes of determining thereunder), any particular Credit Facility in an aggregate principal amount of Debt outstanding under this Section 4.6, clause (i) at any time not to exceed the greater of (x) $35.0 million and (y) 50% of Consolidated EBITDA of the first $25,000,000 Issuer and its Restricted Subsidiaries for the Four-Quarter Period most recently ended prior to the date of such Incurrence; provided that with respect to any revolving credit commitments under any Credit Facility, any Debt thereunder will be deemed to be Incurred on the date the Issuer obtains such revolving credit commitments for the purposes of this clause (i) regardless of when any borrowings, repayments or reborrowings under such commitments are made;
(ii) Debt outstanding under the Credit Agreement Notes (excluding any Additional Notes) and Guarantees of the Notes and contribution, indemnification and reimbursement obligations owed by the Issuer or any Guarantor to any of the other of them in respect of amounts paid or payable on such Notes;
(iii) Debt of the Issuer or any Restricted Subsidiary outstanding at the time of the Issue Date (other than clauses (i) or (ii) above or (xiii) or (xv) below);
(iv) Debt Incurred following the Issue Date that is owed to and held by the Issuer or a Restricted Subsidiary; provided that if such Debt is owed by the Issuer or a Guarantor to a Restricted Subsidiary that is not a Guarantor, such Debt shall be treated subordinated to the prior payment in full of the Obligations;
(v) Guarantees Incurred by the Issuer or a Restricted Subsidiary of Debt or other obligations of the Issuer or a Restricted Subsidiary; provided that (a) such Debt is Permitted Debt or is otherwise Incurred in accordance with this Section 4.9 and (b) such Guarantees are subordinated to the Notes to the same extent as the Debt being guaranteed;
(vi) Debt Incurred in respect of workers’ compensation claims, self-insurance obligations, indemnity, bid, performance, warranty, release, appeal, surety and similar bonds, letters of credit for operating purposes and completion guarantees provided or Incurred (including Guarantees thereof) by the Issuer or a Restricted Subsidiary in the ordinary course of business;
(vii) Debt under Hedging Obligations entered into to manage fluctuations in interest rates, commodity prices and currency exchange rates (and not for speculative purposes);
(viii) Debt of the Issuer or any Restricted Subsidiary pursuant to Capital Lease Obligations and Purchase Money Debt; provided that the aggregate principal amount of such Debt outstanding at any time under this clause (viii) may not exceed $20.0 million in the aggregate;
(ix) the issuance by any of the Restricted Subsidiaries to the Issuer or to any of the Restricted Subsidiaries of shares of preferred stock; provided, however, that:
(a) any subsequent issuance or transfer of Capital Interests that results in any such preferred stock being held by a Person other than the Issuer or Restricted Subsidiaries; and
(b) any sale or other transfer of any such preferred stock to a Person that is not either the Issuer or a Restricted Subsidiary; shall be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (ix);
(x) Debt arising from (x) customary cash management services and automated clearing house transactions, (y) any Bank Product or (z) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that any such Debt Incurred pursuant to clause (i)(bz) is extinguished within five business days of the definition Incurrence;
(xi) Debt of "Permitted Debt," the Issuer or any Restricted Subsidiary not otherwise permitted pursuant to this definition, in an aggregate principal amount not to exceed $20.0 million at any time outstanding;
(yxii) Guarantees, Liens or obligations with Refinancing Debt in respect to letters of credit supporting any Debt otherwise included in the determination of such particular amount shall not be included permitted by clauses (ii) and (ziii) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debt. For purposes of determining compliance with above, this Section 4.6, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (xxii) of the preceding sentence), including under Section 4.6(aor Debt Incurred in accordance with clause (a) of this Section 4.6, the Company, in its sole discretion, shall classify, and from time to time may reclassify, such item of Debt.
(f) The Issuers and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.4.9;
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any Restricted Subsidiary may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (ai) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified Period, Four Quarter Period had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 2.0:1.0 and (bii) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Four Quarter Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale Sales, Asset Acquisitions, Investments, mergers, consolidations or acquisition, discontinued operations (as determined in accordance with GAAP) or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, Consolidated Operating EBITDA and Adjusted Consolidated Interest Expense for the Specified Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale Sales, Asset Acquisitions, Investments, mergers, consolidations or acquisition discontinued operations or designationdesignations, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation events had occurred on the first day of the Specified Four Quarter Period.
(c) If the Debt which that is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to (x) the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and (y) the inclusion inclusion, in EBITDA the Company’s Consolidated Operating EBITDA, of the Consolidated Operating EBITDA of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (athe provisions of Section 4.09(a) abovehereof, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) For purposes of determining any particular amount of Debt under this Section 4.64.09, (x) the first $25,000,000 of Debt Incurred outstanding under the Credit Agreement on the Issue Date shall at all times be treated as Incurred pursuant to clause (i)(b1) of the definition of "“Permitted Debt," ” and (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.09, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(a4.09(a)(i) of this Section 4.6hereof, the Company, in its sole discretion, shall may classify, and from time to time may reclassify, all or any portion of such item of DebtDebt in any manner such that the item of Debt would be permitted to be incurred at the time of such classification or reclassification, as applicable.
(f) The Issuers accrual of interest or dividends, the accretion of principal, accreted value or liquidation preference, the amortization of original issue discount or debt discount, the payment of interest on Debt in the form of additional Debt or the payment of dividends on Capital Interests in the form of additional shares of Capital Interests with the same terms, the obligation to pay a premium in respect of Debt or a Capital Interest arising in connection with the issuance of a notice of redemption or the making of a mandatory change of control offer or asset sale offer for such Debt or Capital Interest, increases in the amount of Debt outstanding solely as a result of fluctuations in exchange rates or currency values, and unrealized losses or charges in respect of Hedging Obligations or Swap Contracts, in each case, will be deemed not to be an Incurrence of Debt or an issuance of Capital Interests for purposes of this Section 4.09.
(g) For purposes of determining compliance with any Guarantor will not Incur U.S. dollar-denominated restriction on the incurrence of Debt or any other covenant, limitation or ratio in this Indenture, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date such Debt was incurred. Notwithstanding any other provision of this Indenture, the maximum amount of Debt that the Company or any Restricted Subsidiary may incur pursuant to its terms is subordinate this Section 4.09 shall not be deemed to be exceeded, nor shall any other covenant, limitation or junior ratio in right this Indenture be deemed to be breached or exceeded solely as a result of payment to any Debt unless such Debt is subordinated fluctuations in right of payment to the Notes and the Note Guarantees to the same extent; provided that exchange rates or currency values.
(h) Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured unsecured, secured with a subset of the collateral securing such other Debt or with different collateral, secured to a greater or lesser extent or secured with greater or lower priority, by virtue of structural subordination, by virtue of maturity date, order of payment or order of application of funds, or by virtue of not being guaranteed by all guarantors of such other Debt, and any subordination in right of payment must be pursuant to a written agreement or instrument.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company Holdings will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt); provided, unlessthat Holdings, the Issuer and any of its Restricted Subsidiaries (other than any Foreign Restricted Subsidiary) may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company Holdings and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such Debt (including any other Debt, other than Debt Incurred under the revolving portion of a Credit Facility, being Incurred contemporaneously), and any other Debt (other than Debt Incurred under the revolving portion of the Credit Facility) Incurred since the beginning of the Specified Period, Four-Quarter Period had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four-Quarter Period, and any other Debt repaid (other than Debt Incurred under the revolving portion of a Credit Facility) since the beginning of the Specified Four-Quarter Period had been repaid at the beginning of the Specified Four-Quarter Period, would be greater than 2.0:1 2.00 to 1.00 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
(c) . If the Debt which is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four-Quarter Period) to (x) the Incurrence of such Acquired Debt or such other Debt by the Company Holdings or any of its Restricted Subsidiaries and (y) the inclusion inclusion, in EBITDA Consolidated Cash Flow Available for Fixed Charges, of the EBITDA Consolidated Cash Flow Available for Fixed Charges of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) . Notwithstanding the first paragraph (a) above, the Company Holdings and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred outstanding under the Credit Agreement on the Issue Date shall at all times be treated as Incurred pursuant to clause (i)(ba) of the definition of "“Permitted Debt," ” and (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(apart (a) in the first paragraph of this Section 4.64.9, the CompanyIssuer, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
(f) The Issuers and . For purposes of determining compliance of any Guarantor will not Incur any non-U.S. dollar-denominated Debt with this Section 4.9, the amount outstanding under U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of the term Debt, or first committed, in the cases of the revolving credit Debt, provided, however, that pursuant to its terms is subordinate or junior in right of payment to any Debt unless if such Debt is subordinated Incurred to Refinance other Debt denominated in right the same or different 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 payment such Refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the Notes principal amount of such Refinancing Debt does not exceed the principal amount of such indebtedness being Refinanced. The accrual of interest, the accretion or amortization of original issue discount and the Note Guarantees to payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same extent; provided that Debt terms will not be considered subordinate deemed to be an Incurrence of Debt or junior in right issuance of payment to any other Debt solely by virtue Capital Interests for purposes of being unsecured or secured to a greater or lesser extent or with greater or lower prioritythis Section 4.9.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, Incur directly or indirectly, create, incur, issue, assume, guaranty or otherwise become directly or indirectly liable with respect to, contingently or otherwise (collectively, "incur"), any Debt (including Acquired Debt), unless, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, unless (a) the Interest Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be greater than 2.0:1 and (bx) no Default or Event of Default shall have occurred would occur after giving effect on a pro forma basis to such incurrence, and be continuing at (y) the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior Consolidated Debt to EBITDA Ratio on the date of determinationon which such additional Debt is incurred would have been less than 6.0 to 1, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated determined on a pro forma basis giving effect to such Asset Sale incurrence (including a pro forma application of the net proceeds therefrom).
(b) The limitation in Section 3.08(a) shall not prohibit the incurrence of:
(i) performance bonds, appeal bonds, surety bonds, insurance obligations or acquisition bonds and other similar bonds or designationobligations incurred in the ordinary course of business;
(ii) Hedging Obligations;
(iii) Debt owed by (1) any Restricted Subsidiaries to the Company or to any of the Company's other Subsidiaries or (2) the Company to any of the Company's Subsidiaries;
(iv) Debt outstanding on the date of this Indenture, as including the case may beSecurities issued on the Initial Issue Date and Debt in connection with, related to or arising from El Paso's $3 Billion Facility and any Refinancing thereof and/or El Paso's Other Financings and any Refinancing thereof; provided, however, that the Company shall not incur any Debt jointly and severally with El Paso in connection with a Refinancing of El Paso's $3 Billion Facility subsequent to the date that is the later of (1) August 19, 2003 and (2) the date on which the Company is no longer jointly and severally liable for any amounts outstanding under El Paso's $3 Billion Facility;
(v) Debt issued in exchange for, or the proceeds of which are used to Refinance Debt including, without limitation, Acquired Debt, incurred pursuant to the Consolidated Debt to EBITDA Ratio set forth above or under clause (iv) above or this clause (v) (collectively, "Refinancing Debt"); provided that (1) the principal amount of such Refinancing Debt does not exceed the principal amount of Debt so Refinanced (plus the premiums and other amounts to be paid, and the application of any proceeds therefrom as if such Asset Sale out-of-pocket expenses reasonably incurred, in connection therewith) and (2) the Refinancing Debt has a Weighted Average Life to Maturity that is equal to or acquisition or designation had occurred on greater than the first day Weighted Average Life to Maturity of the Specified Period.Debt being Refinanced;
(cvi) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt guarantee by the Company or one or more of its Restricted Subsidiaries of Debt of the Company or one or more of its Restricted Subsidiaries that is not prohibited by another provision of this Indenture; or
(vii) other Debt in an aggregate principal amount at any one time outstanding not to exceed $150 million.
(i) The Company shall not, directly or indirectly, incur any guarantee with respect to any Debt of any of its Affiliates (other than Debt of the Company, one or more Subsidiaries of the Company or of the Company and one or more of its Subsidiaries) and (ii) the Company shall not permit any of its Restricted Subsidiaries and the inclusion in EBITDA to, directly or indirectly, incur any guarantee with respect to any Debt of any of the EBITDA Company's Affiliates (other than Debt of the acquired PersonCompany, businessone or more Subsidiaries of the Company, Property of the Company and one or assets more of its Subsidiaries, Debt in connection with, related to or redesignated Subsidiaryarising from El Paso's $3 Billion Facility and any Refinancing thereof, or Debt outstanding on the date hereof in connection with El Paso's Other Financings and any Refinancing thereof).
(d) Notwithstanding paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) For purposes of determining any particular amount of Debt under this This Section 4.6, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date 3.08 shall be treated as Incurred pursuant to clause (i)(b) of no force or effect from and after the definition of "Permitted Debt," (y) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in time the determination of such particular amount shall not be included Securities are first rated at least Baa3 by Moody's and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debt. For purposes of determining compliance with this Section 4.6, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence), including under Section 4.6(a) of this Section 4.6, the Company, in its sole discretion, shall classify, and from time to time may reclassify, such item of Debtat least BBB- by Standard & Poor's.
(f) The Issuers and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.
Appears in 1 contract
Samples: Indenture (El Paso Natural Gas Co)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, Incur any Debt (including Acquired Debt); provided, unlesshowever, that the Company and any of the Restricted Subsidiaries may Incur Debt (including Acquired Debt) if:
(1) immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified Four Quarter Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid (other than Debt Incurred under the revolving portion of a Debt Facility) since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 and at least 2.00 to 1.00; and
(b2) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during Notwithstanding the Specified Period or subsequent thereto and prior to the date provisions of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above4.09(a), the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(ec) For purposes of determining any particular amount of Debt under this Section 4.6, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debt. For purposes of determining compliance with this Section 4.64.09, in the event that an item of Debt meets the criteria of more than one of the types categories of Permitted Debt described above (other than Debt referred or is permitted to in clause (x) of the preceding sentence), including be Incurred under Section 4.6(a) of this Section 4.64.09(a), the Company, in its sole discretion, shall classifyclassify or divide, and from time to time may reclassifyreclassify or redivide, all or any portion of such item of Debt in any manner that complies with this Section 4.09, including the definition of “Permitted Debt”; provided that all Debt outstanding on the Issue Date under the Senior Credit Facility shall be deemed Incurred under clause (1) of the definition of Permitted Debt and not Section 4.09(a) or clause (4) of the definition of Permitted Debt and may not later be reclassified. If obligations in respect of letters of credit are Incurred pursuant to a Debt Facility and relate to other Debt, then such letters of credit shall be treated as Incurred pursuant to clause (1) of the definition of Permitted Debt and such other Debt shall not be included. In addition, except as provided in the preceding sentence of this Section 4.09(c), Guarantees of, or obligations in respect of letters of credit relating to, Debt that is otherwise included in the determination of a particular amount of Debt shall not be included.
(d) For purposes of determining compliance of any non-U.S. dollar-denominated Debt with this Section 4.09, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term Debt, or first committed, in the case of revolving credit Debt; provided, however, that if such Debt is Incurred to refinance other Debt denominated in the same or different 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 Refinancing Debt does not exceed the principal amount of such Debt being refinanced. Notwithstanding any other provision of this Section 4.09, the maximum amount of Debt that the Company may Incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Debt Incurred to refinance other Debt, if Incurred in a different currency from the Debt being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Debt is denominated that is in effect on the date of such refinancing.
(e) The accrual of interest, accrual of dividends, the accretion of accreted value, the amortization of debt discount and the payment of interest on Debt in the form of additional Debt and the payment of dividends on Capital Interests in the form of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt for purposes of this Section 4.09.
(f) The Issuers following shall not be deemed a separate Incurrence of Debt: (1) the obligation to pay a premium in respect of Debt arising in connection with the issuance of a notice of redemption or making a mandatory offer to purchase such Debt and any Guarantor (2) unrealized losses or charges in respect of Hedging Obligations.
(g) The Company will not permit any of its Unrestricted Subsidiaries to Incur any Debt that pursuant to its terms is subordinate or junior issue any Redeemable Capital Interests (in right of payment to each case, other than any Non-Recourse Debt), except as permitted by Section 4.13. If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Debt unless of such Debt is subordinated in right Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary as of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower prioritysuch date.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Issuer and any of its Restricted Subsidiaries that is a Guarantor may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, Issuer would be greater than 2.0:1 (i) on or prior to June 30, 2011, 2.0:1.0, (ii) following June 30, 2011 and on or prior to June 30, 2012, 2.25:1.0 and (iii) following June 30, 2012, 2.5:1.0 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on . Notwithstanding the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above, the Company Issuer and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under compliance with this Section 4.64.9, (x) the first $25,000,000 of Debt outstanding or Incurred under the any Credit Agreement Facility on the Issue Date shall at all times be treated as Incurred pursuant to clause (i)(bi) of the definition of "“Permitted Debt," ” and may not be re-classified, (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated except as Debt. For purposes of determining compliance with this Section 4.6provided above, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including under Section 4.6(a) categories of Permitted Debt and the first paragraph of this Section 4.64.9, the CompanyIssuer, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt and may divide an item into more than one type of Debt.
(f) . The Issuers accrual of interest, the accretion or amortization of original issue discount and any Guarantor the payment of interest on Debt in the form of additional Debt, or payment of dividends on Capital Interests in the form of additional shares of Capital Interests with the same terms or the reclassification of Capital Interests as Debt due to a change in GAAP will not Incur be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this Section 4.9. For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the case of term Debt, or first committed, in the case of revolving credit Debt; provided that pursuant to its terms is subordinate or junior in right of payment to any Debt unless if such Debt is subordinated in right of payment Incurred to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any refinance other Debt solely by virtue 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 refinancing Debt does not exceed the principal amount of such Debt being unsecured or secured to a greater or lesser extent or with greater or lower priorityrefinanced.
Appears in 1 contract
Samples: Indenture (Kemet Corp)
Limitation on Incurrence of Debt. (a) The Company American Commercial Lines will not, and will not permit any of its Restricted Subsidiaries (including the Company) to, Incur any Debt (including Acquired Debt); provided that American Commercial Lines, unlessthe Company and any of American Commercial Lines’ Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, American Commercial Lines would be greater than 2.0:1 2.5 to 1.0 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
; provided, however, that (bA) If, during the Specified Period or subsequent thereto and prior amount of Debt (excluding Acquired Debt permitted pursuant to clause (B) below) that may be Incurred pursuant to the date foregoing by Restricted Subsidiaries that are not Guarantors of determinationthe Notes shall not exceed $10.0 million at any one time outstanding and (B) the amount of Acquired Debt that may be Incurred pursuant to the foregoing by Restricted Subsidiaries that are not Guarantors of the Notes shall not exceed $20.0 million at any one time outstanding (clauses (A) and (B) collectively, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on “Non-Guarantor Exceptions”). Notwithstanding the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under compliance with this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall initially be treated as Incurred pursuant to clause (i)(bi) of the definition of "“Permitted Debt," ” and may not later be re-classified, (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated except as Debt. For purposes of determining compliance with this Section 4.6provided above, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including under Section 4.6(a) categories of Permitted Debt and the first paragraph of this Section 4.64.9, the CompanyAmerican Commercial Lines, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
(f) . The Issuers accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms in each case will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this Section 4.9. The Company and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.
Appears in 1 contract
Samples: Indenture (Jeffboat LLC)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any of its Restricted Subsidiaries that is a Guarantor may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Coverage Consolidated Total Debt Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be greater less than 2.0:1 or equal to 6.0 to 1.0, and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on . Notwithstanding the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under compliance with this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall initially be treated as Incurred pursuant to clause (i)(bi) of the definition of "“Permitted Debt," ” (y) Guarantees, Liens the outstanding principal amount of any Debt shall be counted only once such that (without limitation) any obligation arising under any Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated except as Debt. For purposes of determining compliance with this Section 4.6provided above, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including under Section 4.6(a) categories of Permitted Debt and the first paragraph of this Section 4.64.9, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
(f) . The Issuers accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the forms of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms and changes in the amount outstanding due solely to the result of fluctuations in the exchange rates of currencies will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this Section 4.9. The Company and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company Issuer will not, and will not permit any of its the Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Issuer and any of the Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company Issuer and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be greater than 2.0:1 2.0:1.0 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt; provided, further, that the aggregate principal amount of Debt that may be Incurred by Restricted Subsidiaries that are not Guarantors pursuant to this paragraph may not exceed $20.0 million in the aggregate.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above, the Company Issuer and the Restricted Subsidiaries may Incur “Permitted Debt” as follows:
(i) Debt incurred pursuant to, and the issuance or creation of letters of credit and bankers’ acceptances under or in connection with (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the maximum potential liability of the Issuer and its Restricted Subsidiaries thereunder), any Credit Facility in an aggregate principal amount outstanding under this clause (i) at any time not to exceed (x) $350.0 million plus (y) the greater of (I) $180.0 million and (II) 100.0% of Consolidated EBITDA of the Issuer and its Restricted Subsidiaries for the Four-Quarter Period most recently ended prior to the date of such Incurrence; provided that with respect to any revolving credit commitments under any Credit Facility, any Debt thereunder may, at the discretion of the Issuer, be deemed to be Incurred on the date the Issuer or the applicable Restricted Subsidiary obtains such revolving credit commitments for the purposes of this clause (i) regardless of when any borrowings, repayments or reborrowings under such commitments are made;
(ii) Debt outstanding under the Notes (excluding any Additional Notes) and Guarantees of such Notes and contribution, indemnification and reimbursement obligations owed by the Issuer or any Guarantor to any of the other of them in respect of amounts paid or payable on such Notes;
(iii) Debt of the Issuer or any Restricted Subsidiary outstanding at the time of the Issue Date (other than clauses (i) or (ii) above);
(iv) Debt Incurred following the Issue Date that is owed to and held by the Issuer or a Restricted Subsidiary; provided that if such Debt is owed by the Issuer or a Guarantor to a Restricted Subsidiary that is not a Guarantor, such Debt shall be subordinated to the prior payment in full of the Obligations;
(v) Guarantees Incurred by the Issuer or a Restricted Subsidiary of Debt or other obligations of the Issuer or a Restricted Subsidiary; provided that (a) such Debt is Permitted Debt or is otherwise Incurred in accordance with this Section 4.9 and (b) if the Debt being Guaranteed is subordinated to the Notes, such Guarantees are subordinated to the Note Guarantees to at least the same extent as the Debt being Guaranteed;
(vi) Debt Incurred in respect of workers’ compensation claims, self-insurance obligations, indemnity, bid, performance, warranty, release, appeal, surety and similar bonds, letters of credit for operating purposes and completion guarantees provided or Incurred (including Guarantees thereof) by the Issuer or a Restricted Subsidiary in the ordinary course of business;
(vii) Debt under Hedging Obligations entered into to manage fluctuations in interest rates, commodity prices and currency exchange rates (and not for speculative purposes);
(viii) Debt of the Issuer or any Restricted Subsidiary pursuant to Capital Lease Obligations and Purchase Money Debt; provided that the aggregate principal amount of such Debt outstanding at any time under this clause (viii) may Incur Permitted Debtnot exceed the greater of (i) $35.0 million and (ii) 28% of Consolidated EBITDA of the Issuer and its Restricted Subsidiaries for the Four-Quarter Period most recently ended prior to the date of such Incurrence;
(ix) the issuance by any of the Restricted Subsidiaries to the Issuer or to any of the Restricted Subsidiaries of shares of preferred stock; provided, however, that:
(a) any subsequent issuance or transfer of Capital Interests that results in any such preferred stock being held by a Person other than the Issuer or Restricted Subsidiaries; and
(b) any sale or other transfer of any such preferred stock to a Person that is not either the Issuer or a Restricted Subsidiary; shall be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (ix);
(x) Debt arising from (x) customary cash management services and automated clearing house transactions, (y) any Bank Product or (z) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that any such Debt Incurred pursuant to the foregoing clause (z) is extinguished within five Business Days of the Incurrence;
(xi) Debt of the Issuer or any Restricted Subsidiary not otherwise permitted pursuant to this definition, in an aggregate principal amount at any one time outstanding not to exceed the greater of (i) $35.0 million and (ii) 28% of Consolidated EBITDA of the Issuer and its Restricted Subsidiaries for the Four-Quarter Period most recently ended prior to the date of such Incurrence;
(xii) Debt of a Person incurred and outstanding on or prior to the date on which such Person was acquired by the Issuer or any Restricted Subsidiary or consolidated or merged with or into the Issuer or a Restricted Subsidiary in accordance with the terms of this Indenture; provided that such Debt is not incurred in connection with or in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate, such acquisition or merger; and provided, further, that after giving pro forma effect to such incurrence of Debt and such acquisition, consolidation or merger (i) the Issuer would have been permitted to incur at least $1.00 of additional Debt pursuant to clause (a) of this Section 4.9 or (ii) the Consolidated Fixed Charge Coverage Ratio of the Issuer would on a pro forma basis at least be equal to the Consolidated Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction;
(xiii) Refinancing Debt in respect of any Debt permitted by clauses (ii), (iii) and (xii) above, this clause (xiii) or Debt Incurred in accordance with clause (a) of this Section 4.9;
(xiv) Debt of the Issuer or any Restricted Subsidiary consisting of take-or-pay obligations contained in supply arrangements in the ordinary course of business; and
(xv) Debt consisting of Debt issued by the Issuer or any of its Restricted Subsidiaries to current or former officers, directors, employees and consultants thereof, their respective estates, spouses or former spouses, in each case to finance the purchase or redemption of Capital Interests of the Issuer or any direct or indirect parent company of the Issuer to the extent pursuant to clause (iv) of the second paragraph of Section 4.7.
(ec) For purposes of determining any particular amount of Debt under compliance with this Section 4.64.9, (x) the first $25,000,000 outstanding principal amount of any Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause counted only once such that (i)(bwithout limitation) of the definition of "Permitted Debt," (y) Guarantees, Liens any obligation arising under any Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (zy) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated except as Debt. For purposes of determining compliance with this Section 4.6provided above, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including under Section 4.6(acategories of Permitted Debt and paragraph (a) of this Section 4.64.9, the CompanyIssuer, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt; provided that the entire outstanding principal amount of Debt outstanding under the Credit Agreement as of the Issue Date shall be deemed to be outstanding pursuant to clause (i) above and may not be subsequently reclassified.
(d) The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the forms of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms and changes in the amount outstanding due solely to the result of fluctuations in the exchange rates of currencies will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this Section 4.9.
(e) Notwithstanding anything to the contrary herein, the maximum amount of Debt that may be outstanding pursuant to this Section 4.9 will not be deemed exceeded due to the results of fluctuations in exchange rates or currency values. For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Debt, the U.S. dollar equivalent principal amount of Debt denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred.
(f) The Issuers None of the Issuer and any Guarantor Guarantors will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any of its Restricted Subsidiaries may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified PeriodFour-Quarter Period (as defined below), had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four-Quarter Period, and any other Debt repaid since the beginning of the Specified Four-Quarter Period had been repaid at the beginning of the Specified Four-Quarter Period, would be greater than 2.0:1 2.00:1 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt; provided further, that Restricted Subsidiaries that are not Guarantors may Incur Debt pursuant to this paragraph, determined on a pro forma basis as if any such Debt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Four-Quarter Period (as defined below) had been Incurred and the proceeds thereof had been applied at the beginning of the Four-Quarter Period, and any other Debt repaid since the beginning of the Four-Quarter Period had been repaid at the beginning of the Four-Quarter Period, that would not exceed $40.0 million at any one time outstanding.
(b) If, during Notwithstanding the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) aboveimmediately preceding paragraph, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(ec) For purposes of determining any particular amount of Debt under this Section 4.6SECTION 4.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.6SECTION 4.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(apart (a) of in this Section 4.6SECTION 4.9, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt. If Debt originally Incurred in reliance upon the Secured Debt Cap under clause (i) of the definition of “Permitted Debt” is being refinanced under clause (i) of the definition of “Permitted Debt” and such refinancing would cause the maximum amount of Debt thereunder to be exceeded at such time, then such refinancing will nevertheless be permitted thereunder and such Debt will be deemed to have been incurred under such clause (i) so long as (x) the Liens securing such Refinancing Debt have a lien priority equal or junior to the Liens securing the Debt being refinanced and (y) the principal amount of such Refinancing Debt does not exceed the principal amount of Debt being refinanced plus all accrued interest on the Debt being refinanced and the amount of all fees and expenses, including premiums and defeasance costs, incurred in connection with such refinancing. The accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this SECTION 4.9.
(fd) The Issuers and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that No Debt will not be considered subordinate or junior deemed to be subordinated in right of payment to any other Debt solely by virtue of being unsecured or by virtue of being secured on a junior priority basis (or as a result of the control of remedies). For the avoidance of doubt, as of the Issue Date, no Debt shall be deemed to be Incurred pursuant to clause (i) of the definition of “Permitted Debt”.
(e) In connection with the Company’s or a greater Restricted Subsidiary’s entry into an instrument containing a binding commitment in respect of any revolving Debt, the Company may elect, pursuant to an Officer’s Certificate delivered to the Trustee, to treat all or lesser extent any portion of such commitment (any such amount elected until revoked as described below, an “Elected Amount”) under any Debt which is to be incurred (or with greater any commitment in respect thereof) or lower prioritysecured by a Lien, as the case may be, as being incurred as of such election date, and:
(i) any subsequent incurrence of Debt under such commitment (so long as the total amount under such Debt does not exceed the Elected Amount) shall not be deemed, for purposes of any calculation under this Indenture, to be an incurrence of additional Debt or an additional Lien at such subsequent time;
(ii) the Company may revoke an election of an Elected Amount at any time pursuant to an Officer’s Certificate delivered to the Trustee; and
(iii) for purposes of all subsequent calculations of the Consolidated Fixed Charge Coverage Ratio, the Elected Amount (if any) shall be deemed to be outstanding, whether or not such amount is actually outstanding, so long as the applicable commitment remains outstanding.
Appears in 1 contract
Samples: Indenture (Triumph Group Inc)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt); provided that (i) the Issuers and any of their Restricted Subsidiaries that are Guarantors may Incur Debt (including Acquired Debt) and (ii) Restricted Subsidiaries that are not Guarantors may incur Acquired Debt, unless, if immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) therefrom the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be greater than 2.0:1 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior 2.0 to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on 1.0. Notwithstanding the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) For purposes of determining any particular amount of Debt under this Section 4.6, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debt. For purposes of determining compliance with this Section 4.64.9, (x) Guarantees, or obligations with respect to letters of credit, supporting Debt otherwise included in determining compliance shall not be included and (y) in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including under Section 4.6(a) categories of Permitted Debt and the first paragraph of this Section 4.64.9, the Company, in its sole discretion, shall classifyclassify and/or divide, and from time to time may reclassifyreclassify and/or re-divide, all or any portion of such item of Debt.
(f) . The accrual of interest, the accretion or amortization of original issue discount, if any, and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms in each case will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this Section 4.9. The Issuers and any Guarantor the Guarantors will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is either equal in right of payment to the Notes and the Note Guarantees or subordinated in right of payment to the Notes and the Note Guarantees to the same extentGuarantees; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower prioritypriority 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 or by virtue of lenders within a credit facility agreeing to be paid in a specified (non-pro rata) order of priority within such credit facility. For the avoidance of doubt, nothing contained in this provision shall prevent the incurrence, creation, issuance, assumption or guarantee of any senior subordinated Debt otherwise permitted to be incurred under this Indenture. No such Debt will be considered to be senior by virtue of being secured on a first or junior priority basis.
Appears in 1 contract
Samples: Indenture (APT Sunshine State LLC)
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, Incur any Debt (including Acquired Debt); provided, unless, that the Company and any of its Restricted Subsidiaries may Incur any Acquired Debt or any other Debt if immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Four Quarter Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid (other than Debt Incurred or repaid under the revolving portion of a Debt Facility) since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be at least 2.00 to 1.00; provided that the aggregate principal amount of Acquired Debt or any other Debt Incurred by Non-Guarantor Subsidiaries pursuant to this Section 4.09(a) shall not exceed the greater than 2.0:1 of (x) $120.0 million and (by) no Default or Event 25.0% of Default shall have occurred the Consolidated EBITDA of the Company and be continuing its Restricted Subsidiaries at the time or as a consequence of the Incurrence of such DebtIncurrence.
(b) If, during Notwithstanding the Specified Period or subsequent thereto and prior to the date provisions of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above4.09(a), the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(ec) For purposes If obligations in respect of determining any particular amount letters of credit are Incurred pursuant to a Debt under this Section 4.6Facility and relate to other Debt, (x) the first $25,000,000 then such letters of Debt Incurred under the Credit Agreement on the Issue Date credit shall be treated as Incurred pursuant to clause (i)(b1) of the definition of "Permitted Debt," (y) GuaranteesDebt and such other Debt shall not be included. In addition, Liens except as provided in the preceding sentence of this Section 4.09(c), Guarantees of, or obligations with in respect to of letters of credit supporting relating to, Debt that is otherwise included in the determination of such a particular amount of Debt shall not be included and included.
(zd) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debt. For purposes of determining compliance of any non-U.S. dollar-denominated Debt with this Section 4.64.09, the U.S. dollar-equivalent principal amount of Debt denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Debt was Incurred, in the event case of term Debt, or first committed, in the case of revolving credit Debt; provided, however, that an item if such Debt is Incurred to refinance other Debt denominated in the same or different 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 Refinancing Debt meets does not exceed the criteria principal amount of more than one of the types of such Debt described above (being refinanced. Notwithstanding any other than Debt referred to in clause (x) of the preceding sentence), including under Section 4.6(a) provision of this Section 4.64.09, the Companymaximum amount of Debt that the Company may Incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Debt Incurred to refinance other Debt, if Incurred in its sole discretiona different currency from the Debt being refinanced, shall classifybe calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Debt is denominated that is in effect on the date of such refinancing.
(e) The accrual of interest, accrual of dividends, the accretion of accreted value, the amortization of debt discount and from time the payment of interest on Debt in the form of additional Debt and the payment of dividends on Capital Interests in the form of additional shares of Capital Interests with the same terms will not be deemed to time may reclassify, such item be an Incurrence of DebtDebt for purposes of this Section 4.09.
(f) The Issuers following shall not be deemed a separate Incurrence of Debt: (1) the obligation to pay a premium in respect of Debt arising in connection with the issuance of a notice of redemption or making a mandatory offer to purchase such Debt and any Guarantor (2) unrealized losses or charges in respect of Hedging Obligations.
(g) The Company will not permit any of its Unrestricted Subsidiaries to Incur any Debt or issue any Redeemable Capital Interests (in each case, other than any Non-Recourse Debt), except as permitted by Section 4.13. If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Debt of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary as of such date (and, if such Debt is not permitted to be Incurred as of such date under this Section 4.09, the Company shall be in Default under this Section 4.09).
(h) The Company will not, and will not permit any Guarantor to, directly or indirectly, Incur any Debt (including Acquired Debt) that pursuant is or purports to be by its terms is subordinate (or by the terms of any agreement governing such Debt) subordinated or junior in right of payment to any other Debt (including Acquired Debt) of the Company or such Guarantor, as the case may be, unless such Debt is expressly subordinated in right of payment to the Notes and or such Guarantor’s Note Guarantee, as the Note Guarantees case may be, to the same extent; provided that extent and in the same manner as such Debt is subordinated to such other Debt of the Company or such Guarantor, as the case may be. For purposes of the foregoing, no Debt will not be considered deemed to be contractually subordinate or junior in right of payment to any other Debt solely by virtue of (1) being unsecured or secured (2) its having a junior priority with respect to a greater or lesser extent or with greater or lower prioritythe same collateral.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Company and any of its Restricted Subsidiaries that is a Guarantor may Incur Debt (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Coverage Consolidated Total Debt Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be greater less than 2.0:1 or equal to 5.25 to 1.0, and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged in any Asset Sale or acquisition, or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on . Notwithstanding the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) to the Incurrence of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under compliance with this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall be treated as Incurred pursuant to clause (i)(bi) of the definition of "“Permitted Debt," ” (y) Guarantees, Liens the outstanding principal amount of any Debt shall be counted only once such that (without limitation) any obligation arising under any Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated except as Debt. For purposes of determining compliance with this Section 4.6provided above, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including under Section 4.6(a) categories of Permitted Debt and the first paragraph of this Section 4.64.9, the Company, in its sole discretion, shall classify, and from time to time may reclassify, all or any portion of such item of Debt.
(f) . The Issuers accrual of interest, the accretion or amortization of original issue discount and the payment of interest on Debt in the forms of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms and changes in the amount outstanding due solely to the result of fluctuations in the exchange rates of currencies will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this Section 4.9. The Company and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (Debt, including Acquired Debt), unless, unless immediately after giving effect to the Incurrence of such Debt and the receipt and contemporaneous application of the proceeds therefrom, (a) the Interest Coverage Ratio of the Company and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period"), determined on a pro forma basis as if any such Debt, and any other Debt Incurred since the beginning of the Specified Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Period, and any other Debt repaid since the beginning of the Specified Period had been repaid at the beginning of the Specified Period, would be greater than 2.0:1 1.75:1 and (b) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) If, during the Specified Period or subsequent thereto and prior to the date of determination, the Company or any of its Restricted Subsidiaries shall have engaged engage in any Asset Sale or acquisition, or shall have designated designate any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Interest Expense for the Specified Period shall be calculated on a pro forma basis giving effect to such Asset Sale or acquisition or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition or designation had occurred on the first day of the Specified Period.
(c) If the Debt which is the subject of a determination under this Section 4.6 is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Period) Period to both the Incurrence or assumption of such Acquired Debt or such other Debt by the Company or any of its Restricted Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person, business, Property or assets or redesignated Subsidiary.
(d) Notwithstanding paragraph (a) above, the Company and its Restricted Subsidiaries may Incur Permitted Debt.
(e) For purposes of determining any particular amount of Debt under this Section 4.6, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on or prior to the Issue Date shall be treated as Incurred pursuant to clause (i)(b) of the definition of "Permitted Debt," (y) Guarantees, Liens or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debt. For purposes of determining compliance with this Section 4.6, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence), including under Section 4.6(a) of this Section 4.6, the Company, in its sole discretion, shall classify, and from time to time may reclassify, such item of Debt.
(f) The Issuers and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right accretion of payment to any Debt unless such Debt is subordinated in right of payment to original issue discount on the Notes and the Note Guarantees to the same extent; provided that Debt will Existing 15% Notes, any accruals of interest or payment of interest or additional Notes, shall not be considered subordinate or junior in right deemed an incurrence of payment to any other Debt solely by virtue for purposes of being unsecured or secured to a greater or lesser extent or with greater or lower prioritythis Section 4.6.
Appears in 1 contract
Limitation on Incurrence of Debt. (a) The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, Incur any Debt (including Acquired Debt), unless; provided that the Issuer and any of its Restricted Subsidiaries may Incur Debt that is unsecured (including Acquired Debt) if, immediately after giving effect to the Incurrence of such Debt and the receipt and application of the proceeds therefrom, (a) the Interest Consolidated Fixed Charge Coverage Ratio of the Company Issuer and its Restricted Subsidiaries for the last four fiscal quarters for which financial information is available at the date of determination (the "Specified Period")Subsidiaries, determined on a pro forma basis as if any such DebtDebt (including any other Debt being Incurred contemporaneously), and any other Debt Incurred since the beginning of the Specified Four Quarter Period, had been Incurred and the proceeds thereof had been applied at the beginning of the Specified Four Quarter Period, and any other Debt repaid since the beginning of the Specified Four Quarter Period had been repaid at the beginning of the Specified Four Quarter Period, would be greater than 2.0:1 and (b) no Default is at least 2.00:1.00; provided, further, that the aggregate principal amount of Debt Incurred by Restricted Subsidiaries that are not the Issuer or Event of Default Guarantors pursuant to this paragraph shall have occurred and be continuing at the time or as a consequence of the Incurrence of such Debt.
(b) not exceed $25.0 million. If, during the Specified Four Quarter Period or subsequent thereto and prior to the date of determination, the Company Issuer or any of its Restricted Subsidiaries shall have engaged in any Asset Sale asset sale or asset acquisition, Restricted Payments, investments, mergers, consolidations, discontinued operations (as determined in accordance with GAAP) or shall have designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Adjusted Consolidated Interest Expense for the Specified Four Quarter Period shall be calculated on a pro forma basis giving effect to such Asset Sale asset sale or acquisition asset acquisition, Restricted Payments, investments, mergers, consolidations, discontinued operations or designation, as the case may be, and the application of any proceeds therefrom as if such Asset Sale or acquisition transaction or designation had occurred on the first day of the Specified Four Quarter Period.
(c) . If the Debt which that is the subject of a determination under this Section 4.6 provision is Acquired Debt, or Debt Incurred in connection with the simultaneous acquisition of any Person, business, Property property or assets, or Debt of an Unrestricted Subsidiary being designated as a Restricted Subsidiary, then such ratio shall be determined by giving effect (on a pro forma basis, as if the transaction had occurred at the beginning of the Specified Four Quarter Period) to the Incurrence of such Acquired Debt or such other Debt by the Company Issuer or any of its Restricted Subsidiaries and the inclusion inclusion, in EBITDA EBITDA, of the EBITDA of the acquired Person, business, Property property or assets or redesignated Subsidiary.
(d) . Notwithstanding the first paragraph (a) above, the Company Issuer and its Restricted Subsidiaries may Incur Permitted Debt.
(e) . For purposes of determining any particular amount of Debt under this Section 4.64.9, (x) the first $25,000,000 of Debt Incurred under the Credit Agreement on the Issue Date shall initially be treated as Incurred pursuant to clause (i)(bi) of the definition of "“Permitted Debt," ” and may not later be re-classified and (y) Guarantees, Liens Guarantees or obligations with respect to letters of credit supporting Debt otherwise included in the determination of such particular amount shall not be included and (z) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.11 shall not be treated as Debtincluded. For purposes of determining compliance with this Section 4.64.9, in the event that an item of Debt meets the criteria of more than one of the types of Debt described above (other than Debt referred to in clause (x) of the preceding sentence)above, including categories of Permitted Debt and under Section 4.6(a) the first paragraph of this Section 4.64.9, the CompanyIssuer, in its sole discretion, shall divide and classify, and from time to time may divide and reclassify, all or any portion of such item of Debt.
(f) . The Issuers accrual of interest, the accretion or amortization of accreted value or original issue discount and the payment of interest on Debt in the form of additional Debt or payment of dividends on Capital Interests in the forms of additional shares of Capital Interests with the same terms will not be deemed to be an Incurrence of Debt or issuance of Capital Interests for purposes of this Section 4.9. The Issuer and any Guarantor will not Incur any Debt that pursuant to its terms is subordinate or junior in right of payment to any Debt unless such Debt is subordinated in right of payment to the Notes and the Note Guarantees to the same extent; provided that Debt will not be considered subordinate or junior in right of payment to any other Debt solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority.
Appears in 1 contract
Samples: Indenture (BlueLinx Holdings Inc.)
