Limitations on Funded Debt. (a) The Company will not, and will not permit any Subsidiary to, create, assume, guarantee or otherwise incur or in any manner become liable in respect of any Funded Debt, except: (i) Funded Debt evidenced by the Notes; (ii) Funded Debt of the Company and its Subsidiaries outstanding as of the date of the Closing and described in Schedule 5.15; (iii) Funded Debt of the Company to UAM Trademark, PROVIDED that such Funded Debt is evidenced by a promissory note or notes which are subordinated to all obligations of the Company to the holders of the Notes under this Agreement, the Notes and the Security Documents in form and substance satisfactory to the Required Holders and which promissory note or notes have been delivered to the Collateral Agent, duly endorsed to the Collateral Agent, for the ratable benefit of the Secured Parties; (iv) Guaranties by the Company's Subsidiaries of Funded Debt of the Company, which Guaranties have been entered into pursuant to the terms and provisions and upon the conditions set forth in the Security Documents, the Bank Credit Agreement and this Agreement; (v) additional Funded Debt of the Company and/or any one or more of its Subsidiaries, PROVIDED that at the time of creation, issuance, assumption, guarantee or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof: (A) Consolidated Operating Cash Flow for the immediately preceding four fiscal quarters will be at least equal to 22.5% of Consolidated Senior Funded Debt and to 17.5% of Consolidated Funded Debt, in each such case outstanding on the last day of each of such four fiscal quarters, and (B) in the case of the issuance of any Funded Debt of the Company secured by Liens permitted by Section 10.5(k) and any Funded Debt of a Subsidiary, the sum of (y) the aggregate amount of all Funded Debt secured by Liens permitted by Section 10.5(k) PLUS (z) the aggregate amount of all Funded Debt of Subsidiaries, shall not exceed 15% of Consolidated Tangible Net Worth; (vi) Funded Debt of a Subsidiary to the Company or to a Substantially-Owned Subsidiary. (b) Indebtedness issued or incurred in accordance with the limitations of Section 10.4(a) may be renewed, extended or refunded, PROVIDED, that any increase in principal amount remaining unpaid at the time of such renewal, extension or refunding shall be within the limitations of Section 10.4(a)(v), PROVIDED FURTHER, that at the time of such renewal, extension or refunding and after giving effect thereto, no Default or Event of Default would exist. (c) Any Person which becomes a Subsidiary after the date hereof shall for all purposes of this Section 10.4 be deemed to have created, assumed or incurred at the time it becomes a Subsidiary all Funded Debt of such Person existing immediately after it becomes a Subsidiary. (d) The Company shall not effect or permit any change in or amendment to (i) the terms by which any Subordinated Indebtedness purports to be subordinated to the payment and performance of the Notes or (ii) the terms relating to the repayment of any Subordinated Indebtedness (other than any extensions of the date of payment therefor or any reductions in the amount thereof or in the rate at which interest or other fees are payable to the holders thereof in connection therewith). (e) The Company shall not directly or indirectly make any payment of any principal of or any redemption, retirement, defeasance or repurchase, in whole or in part, of any Subordinated Indebtedness or pledge any collateral therefor, except payments required by the instruments evidencing such Subordinated Indebtedness and the pledge of collateral as permitted by Section 10.5(g), PROVIDED that nothing shall preclude the Company from permitting the conversion of any Subordinated Indebtedness to equity by exercise of warrants or otherwise (in accordance with its terms).
Appears in 2 contracts
Samples: Note Purchase Agreement (United Asset Management Corp), First Amendment and Consent (United Asset Management Corp)
Limitations on Funded Debt. (a) The Company will notFor so long as any Notes issued pursuant to this First Supplemental Indenture are Outstanding, and the Corporation will not permit any Restricted Subsidiary toto incur, create, assumeissue, guarantee or otherwise incur or in any manner become liable in respect of create any Funded DebtDebt unless, except:
(i) Funded Debt evidenced by the Notes;
(ii) Funded Debt of the Company and its Subsidiaries outstanding as of the date of the Closing and described in Schedule 5.15;
(iii) Funded Debt of the Company to UAM Trademark, PROVIDED that such Funded Debt is evidenced by a promissory note or notes which are subordinated to all obligations of the Company to the holders of the Notes under this Agreement, the Notes and the Security Documents in form and substance satisfactory to the Required Holders and which promissory note or notes have been delivered to the Collateral Agent, duly endorsed to the Collateral Agent, for the ratable benefit of the Secured Parties;
(iv) Guaranties by the Company's Subsidiaries of Funded Debt of the Company, which Guaranties have been entered into pursuant to the terms and provisions and upon the conditions set forth in the Security Documents, the Bank Credit Agreement and this Agreement;
(v) additional Funded Debt of the Company and/or any one or more of its Subsidiaries, PROVIDED that at the time of creation, issuance, assumption, guarantee or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof:
(A) Consolidated Operating Cash Flow for the immediately preceding four fiscal quarters will be at least equal to 22.5% of Consolidated Senior Funded Debt and to 17.5% of Consolidated Funded Debt, in each such case outstanding on the last day of each of such four fiscal quarters, and
(B) in the case of the issuance of any Funded Debt of the Company secured by Liens permitted by Section 10.5(k) and any Funded Debt of a Subsidiarythereto, the sum of (y) the aggregate amount of all Funded Debt secured by Liens permitted by Section 10.5(k) PLUS (z) the aggregate amount of all outstanding Funded Debt of Subsidiaries, shall the Restricted Subsidiaries would not exceed an amount equal to 15% of Consolidated Net Tangible Net Worth;
(vi) Assets. The limitation on Funded Debt will not apply to, and there will be excluded from Funded Debt in any computation under such restriction, Funded Debt secured by: (i) Liens on real or physical property of any corporation existing at the time such corporation becomes a Subsidiary to the Company Subsidiary; (ii) Liens on real or to a Substantially-Owned Subsidiary.
(b) Indebtedness issued or incurred in accordance with the limitations of Section 10.4(a) may be renewed, extended or refunded, PROVIDED, that any increase in principal amount remaining unpaid physical property existing at the time of acquisition thereof incurred within 180 days of the time of acquisition thereof (including, without limitation, acquisition through merger or consolidation) by the Corporation or any Restricted Subsidiary; (iii) Liens on real or physical property thereafter acquired (or constructed) by the Corporation or any Restricted Subsidiary and created prior to, at the time of, or within 270 days after such renewalacquisition (including, extension without limitation, acquisition through merger or refunding consolidation) (or the completion of such construction or commencement of commercial operation of such property, whichever is later) to secure or provide for the payment of all or any part of the purchase price (or the construction price) thereof; (iv) Liens in favor of the Corporation or any Restricted Subsidiary; (v) Liens in favor of the United States of America, any State thereof or the District of Columbia, or any agency, department or other instrumentality thereof, to secure partial, progress, advance or other payments pursuant to any contract or provisions of any statute, (vi) Liens incurred or assumed in connection with the issuance of revenue bonds the interest on which is exempt from Federal Income taxation pursuant to Section 103(b) of the Internal Revenue Code of 1954, as amended; (vii) Liens securing the performance of any contract or undertaking not directly or indirectly in connection with the borrowing of money, the obtaining of advances or credit or the securing of Funded Debt, if made and continuing in the ordinary course of business; (viii) Liens incurred (no matter when created) in connection with the Corporation's or a Restricted Subsidiary's engaging in leveraged or single-investor lease transaction; provided, however, that the instrument creating or evidencing any borrowings secured by such Lien will provide that such borrowings are payable solely out of the income and proceeds of the property subject to such Lien and are not a general obligation of the Corporation or such Restricted Subsidiary; (ix) Liens under workers' compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts or deposits to secure public or statutory obligations of the Corporation or any Restricted Subsidiary, or deposits of cash or obligations of the United States of America to secure surety, repletion and appeal bonds to which the Corporation or any Restricted Subsidiary is a party or in lieu of such bonds, or pledges or deposits for similar purposes in the ordinary course of business, or Liens imposed by law, such as laborers' or other employees', carriers', warehousemen's, mechanics', materialmen's and vendors' Liens and Liens arising out of judgments or awards against the Corporation or any Restricted Subsidiary with respect to which the Corporation or such Restricted Subsidiary at the time shall be prosecuting an appeal or proceedings for review and with respect to which it shall have secured a stay of execution pending such appeal or proceedings for review, or Liens for taxes not yet subject to penalties for nonpayment or the amount or validity of which is being in good faith contested by appropriate proceedings by the Corporation or any Restricted Subsidiary, as the case may be, or minor survey exceptions, minor encumbrances, easement or reservations of, or rights of others for, rights of- way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions or Liens as the use of real properties which Liens, exceptions, encumbrances, easements, reservations, rights and restrictions do not, in the opinion of the Corporation, in the aggregate materially detract from the value of said properties or material impair their use in the operation of the business of the Corporation and its Restricted Subsidiaries; (x) Liens incurred to finance construction, alteration or repair of any real or physical property and improvements thereto prior to or within 270 days after completion of such construction, alteration or repair; (xi) Liens incurred (no matter when created) in connection with a Securitization Transaction; (xii) Liens on property (or any Receivable arising in connection with the limitations of Section 10.4(a)(v)lease thereof) acquired by the Corporation or a Restricted Subsidiary through repossession, PROVIDED FURTHER, that foreclosure or liens proceeding and existing at the time of such renewalthe repossession, extension foreclosure, or refunding and after giving effect thereto, no Default or Event of Default would exist.
like proceeding; (cxiii) Any Person which becomes a Subsidiary after the date hereof shall for all purposes of this Section 10.4 be deemed to have created, assumed or incurred at the time it becomes a Subsidiary all Funded Debt of such Person existing immediately after it becomes a Subsidiary.
(d) The Company shall not effect or permit any change in or amendment to (i) the terms by which any Subordinated Indebtedness purports to be subordinated to the payment and performance Liens on deposits of the Notes Corporation or a Restricted Security with banks (ii) the terms relating to the repayment of any Subordinated Indebtedness (other than any extensions of the date of payment therefor or any reductions in the amount thereof or in the rate at which interest or other fees are payable to the holders thereof in connection therewith).
(e) The Company shall aggregate, not directly or indirectly make any payment of any principal of or any redemption, retirement, defeasance or repurchase, in whole or in part, of any Subordinated Indebtedness or pledge any collateral therefor, except payments required by the instruments evidencing such Subordinated Indebtedness and the pledge of collateral as permitted by Section 10.5(gexceeding $30 million), PROVIDED that nothing shall preclude the Company from permitting the conversion of any Subordinated Indebtedness to equity by exercise of warrants or otherwise (in accordance with its terms)customary banking practice, in connection with the providing by the Corporation or a Restricted Subsidiary of financial accommodations to any Person in the ordinary course of business; or (xiv) any extension, renewal, refunding or replacement of the foregoing.
Appears in 1 contract
Samples: First Supplemental Indenture (Norfolk Southern Corp)
Limitations on Funded Debt. (a) The For so long as any Securities issued pursuant to this Indenture are Outstanding, the Company will not, and will shall not permit any Restricted Subsidiary toto incur, create, assumeissue, guarantee or otherwise incur or create any Funded Debt unless, after giving effect thereto, the sum of the aggregate amount of all outstanding Funded Debt of the Restricted Subsidiaries would not exceed an amount equal to 15% of Consolidated Net Tangible Assets.
(b) This Section shall not apply to, and there shall be excluded from Funded Debt in any manner become liable in respect computation pursuant hereto, Funded Debt secured by: (i) Liens on real or physical property of any corporation existing at the time such corporation becomes a Subsidiary; (ii) Liens on real or physical property existing at the time of acquisition thereof or incurred within 180 days of the time of acquisition thereof (including, without limitation, acquisition through merger or consolidation) by the Company or any Restricted Subsidiary; (iii) Liens on real or physical property hereafter acquired (or constructed) by the Company or any Restricted Subsidiary and created prior to, at the time of, or within 270 days after such acquisition (including, without limitation, acquisition through merger or consolidation) (or the completion of such construction or commencement of commercial operation of such property, whichever is later) to secure or provide for the payment of all or any part of the purchase price (or the construction price) thereof; (iv) Liens in favor of the Company or any Restricted Subsidiary; (v) Liens in favor of the United States of America, any State thereof or the District of Columbia, or any agency, department or other instrumentality thereof, to secure partial, progress, advance or other payments pursuant to any contract or the provisions of any statute, (vi) Liens incurred or assumed in connection with the issuance of revenue bonds the interest on which is exempt from federal income taxation pursuant to Section 103(a) of the Internal Revenue Code; (vii) Liens securing the performance of any contract or undertaking not directly or indirectly in connection with the borrowing of money, the obtaining of advances or credit or the securing of Funded Debt, except:
if made and continuing in the ordinary course of business; (iviii) Funded Debt evidenced Liens incurred (no matter when created) in connection with the Company or a Restricted Subsidiary engaging in a leveraged or single-investor lease transaction; provided, however, that the instrument creating or evidencing any borrowings secured by such Lien will provide that such borrowings are payable solely out of the income and proceeds of the property subject to such Lien and are not a general obligation of the Company or such Restricted Subsidiary; (ix) Liens under workers’ compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts or deposits to secure public or statutory obligations of the Company or any Restricted Subsidiary, or deposits of cash or obligations of the United States of America to secure surety and appeal bonds to which the Company or any Restricted Subsidiary is a party or in lieu of such bonds, or pledges or deposits for similar purposes in the ordinary course of business, or Liens imposed by law, such as laborers’ or other employees’, carriers’, warehousemen’s, mechanics’, materialmen’s and vendors’ Liens and Liens arising out of judgments or awards against the Company or any Restricted Subsidiary with respect to which the Company or such Restricted Subsidiary at the time shall be prosecuting an appeal or proceedings for review and with respect to which it shall have secured a stay of execution pending such appeal or proceedings for review, or Liens for taxes not yet subject to penalties for nonpayment or the amount or validity of which is being in good faith contested by appropriate proceedings by the Notes;
(ii) Funded Debt Company or any Restricted Subsidiary, as the case may be, or minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions or Liens on the use of real properties, which Liens, exceptions, encumbrances, easements, reservations, rights and restrictions do not, in the opinion of the Company, in the aggregate materially detract from the value of said properties or materially impair their use in the operation of the business of the Company and its Subsidiaries outstanding as Restricted Subsidiaries; (x) Liens incurred to finance construction, alteration or repair of any real or physical property and improvements thereto prior to or within 270 days after completion of such construction, alteration or repair; (xi) Liens incurred (no matter when created) in connection with a Securitization Transaction; (xii) Liens on property (or any Receivable arising in connection with the date of the Closing and described in Schedule 5.15;
(iiilease thereof) Funded Debt of acquired by the Company to UAM Trademarkor a Restricted Subsidiary through repossession, PROVIDED that such Funded Debt is evidenced by a promissory note foreclosure or notes which are subordinated to all obligations of the Company to the holders of the Notes under this Agreement, the Notes like proceeding and the Security Documents in form and substance satisfactory to the Required Holders and which promissory note or notes have been delivered to the Collateral Agent, duly endorsed to the Collateral Agent, for the ratable benefit of the Secured Parties;
(iv) Guaranties by the Company's Subsidiaries of Funded Debt of the Company, which Guaranties have been entered into pursuant to the terms and provisions and upon the conditions set forth in the Security Documents, the Bank Credit Agreement and this Agreement;
(v) additional Funded Debt of the Company and/or any one or more of its Subsidiaries, PROVIDED that existing at the time of creationthe repossession, issuanceforeclosure, assumption, guarantee or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof:
like proceeding; (Axiii) Consolidated Operating Cash Flow for the immediately preceding four fiscal quarters will be at least equal to 22.5% of Consolidated Senior Funded Debt and to 17.5% of Consolidated Funded Debt, in each such case outstanding Liens on the last day of each of such four fiscal quarters, and
(B) in the case of the issuance of any Funded Debt deposits of the Company secured or a Restricted Subsidiary with banks (in the aggregate, not exceeding $50 million), in accordance with customary banking practice, in connection with the providing by Liens permitted by Section 10.5(k) and any Funded Debt of a Subsidiary, the sum of (y) the aggregate amount of all Funded Debt secured by Liens permitted by Section 10.5(k) PLUS (z) the aggregate amount of all Funded Debt of Subsidiaries, shall not exceed 15% of Consolidated Tangible Net Worth;
(vi) Funded Debt of a Subsidiary to the Company or a Restricted Subsidiary of financial accommodations to a Substantially-Owned Subsidiary.
any Person in the ordinary course of business; or (bxiv) Indebtedness issued or incurred in accordance with the limitations of Section 10.4(a) may be renewedany extension, extended or refunded, PROVIDED, that any increase in principal amount remaining unpaid at the time of such renewal, extension refunding or refunding shall be within the limitations of Section 10.4(a)(v), PROVIDED FURTHER, that at the time of such renewal, extension or refunding and after giving effect thereto, no Default or Event of Default would exist.
(c) Any Person which becomes a Subsidiary after the date hereof shall for all purposes of this Section 10.4 be deemed to have created, assumed or incurred at the time it becomes a Subsidiary all Funded Debt of such Person existing immediately after it becomes a Subsidiary.
(d) The Company shall not effect or permit any change in or amendment to (i) the terms by which any Subordinated Indebtedness purports to be subordinated to the payment and performance replacement of the Notes or (ii) the terms relating to the repayment of any Subordinated Indebtedness (other than any extensions of the date of payment therefor or any reductions in the amount thereof or in the rate at which interest or other fees are payable to the holders thereof in connection therewith)foregoing.
(e) The Company shall not directly or indirectly make any payment of any principal of or any redemption, retirement, defeasance or repurchase, in whole or in part, of any Subordinated Indebtedness or pledge any collateral therefor, except payments required by the instruments evidencing such Subordinated Indebtedness and the pledge of collateral as permitted by Section 10.5(g), PROVIDED that nothing shall preclude the Company from permitting the conversion of any Subordinated Indebtedness to equity by exercise of warrants or otherwise (in accordance with its terms).
Appears in 1 contract
Samples: Indenture (Norfolk Southern Corp)
Limitations on Funded Debt. (a) The Company will notFor so long as any Notes issued pursuant to this Fifth Supplemental Indenture are Outstanding, and will the Corporation shall not permit any Restricted Subsidiary toto incur, create, assumeissue, guarantee or otherwise incur or in any manner become liable in respect of create any Funded DebtDebt unless, except:
(i) Funded Debt evidenced by the Notes;
(ii) Funded Debt of the Company and its Subsidiaries outstanding as of the date of the Closing and described in Schedule 5.15;
(iii) Funded Debt of the Company to UAM Trademark, PROVIDED that such Funded Debt is evidenced by a promissory note or notes which are subordinated to all obligations of the Company to the holders of the Notes under this Agreement, the Notes and the Security Documents in form and substance satisfactory to the Required Holders and which promissory note or notes have been delivered to the Collateral Agent, duly endorsed to the Collateral Agent, for the ratable benefit of the Secured Parties;
(iv) Guaranties by the Company's Subsidiaries of Funded Debt of the Company, which Guaranties have been entered into pursuant to the terms and provisions and upon the conditions set forth in the Security Documents, the Bank Credit Agreement and this Agreement;
(v) additional Funded Debt of the Company and/or any one or more of its Subsidiaries, PROVIDED that at the time of creation, issuance, assumption, guarantee or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof:
(A) Consolidated Operating Cash Flow for the immediately preceding four fiscal quarters will be at least equal to 22.5% of Consolidated Senior Funded Debt and to 17.5% of Consolidated Funded Debt, in each such case outstanding on the last day of each of such four fiscal quarters, and
(B) in the case of the issuance of any Funded Debt of the Company secured by Liens permitted by Section 10.5(k) and any Funded Debt of a Subsidiarythereto, the sum of (y) the aggregate amount of all Funded Debt secured by Liens permitted by Section 10.5(k) PLUS (z) the aggregate amount of all outstanding Funded Debt of Subsidiaries, shall the Restricted Subsidiaries would not exceed an amount equal to 15% of Consolidated Net Tangible Net Worth;
(vi) Assets. This Section 302 shall not apply to, and there shall be excluded from Funded Debt in any computation pursuant hereto, Funded Debt secured by: (i) Liens on real or physical property of any corporation existing at the time such corporation becomes a Subsidiary to the Company Subsidiary; (ii) Liens on real or to a Substantially-Owned Subsidiary.
(b) Indebtedness issued or incurred in accordance with the limitations of Section 10.4(a) may be renewed, extended or refunded, PROVIDED, that any increase in principal amount remaining unpaid physical property existing at the time of acquisition thereof incurred within 180 days of the time of acquisition thereof (including, without limitation, acquisition through merger or consolidation) by the Corporation or any Restricted Subsidiary; (iii) Liens on real or physical property thereafter acquired (or constructed) by the Corporation or any Restricted Subsidiary and created prior to, at the time of, or within 270 days after such renewalacquisition (including, extension without limitation, acquisition through merger or refunding consolidation) (or the completion of such construction or commencement of commercial operation of such property, whichever is later) to secure or provide for the payment of all or any part of the purchase price (or the construction price) thereof; (iv) Liens in favor of the Corporation or any Restricted Subsidiary; (v) Liens in favor of the United States of America, any State thereof or the District of Columbia, or any agency, department or other instrumentality thereof, to secure partial, progress, advance or other payments pursuant to any contract or the provisions of any statute, (vi) Liens incurred or assumed in connection with the issuance of revenue bonds the interest on which is exempt from federal income taxation pursuant to Section 103 (b) of the Internal Revenue Code of 1954, as amended; (vii) Liens securing the performance of any contract or undertaking not directly or indirectly in connection with the borrowing of money, the obtaining of advances or credit or the securing of Funded Debt, if made and continuing in the ordinary course of business; (viii) Liens incurred (no matter when created) in connection with the Corporation's or a Restricted Subsidiary's engaging in a leveraged or single-investor lease transaction; PROVIDED, HOWEVER, that the instrument creating or evidencing any borrowings secured by such Lien will provide that such borrowings are payable solely out of the income and proceeds of the property subject to such Lien and are not a general obligation of the Corporation or such Restricted Subsidiary; (ix) Liens under workers' compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts or deposits to secure public or statutory obligations of the Corporation or any Restricted Subsidiary, or deposits of cash or obligations of the United States of America to secure surety, repletion and appeal bonds to which the Corporation or any Restricted Subsidiary is a party or in lieu of such bonds, or pledges or deposits for similar purposes in the ordinary course of business, or Liens imposed by law, such as laborers' or other employees', carriers', warehousemen's, mechanics', materialmen's and vendors' Liens and Liens arising out of judgments or awards against the Corporation or any Restricted Subsidiary with respect to which the Corporation or such Restricted Subsidiary at the time shall be prosecuting an appeal or proceedings for review and with respect to which it shall have secured a stay of execution pending such appeal or proceedings for review, or Liens for taxes not yet subject to penalties for nonpayment or the amount or validity of which is being in good faith contested by appropriate proceedings by the Corporation or any Restricted Subsidiary, as the case may be, or minor survey exceptions, minor encumbrances, easement or reservations of, or rights of others for, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions or Liens on the use of real properties which Liens, exceptions, encumbrances, easements, reservations, rights and restrictions do not, in the opinion of the Corporation, in the aggregate materially detract from the value of said properties or materially impair their use in the operation of the business of the Corporation and its Restricted Subsidiaries; (x) Liens incurred to finance construction, alteration or repair of any real or physical property and improvements thereto prior to or within 270 days after completion of such construction, alteration or repair; (xi) Liens incurred (no matter when created) in connection with a Securitization Transaction; (xii) Liens on property (or any Receivable arising in connection with the limitations of Section 10.4(a)(v)lease thereof) acquired by the Corporation or a Restricted Subsidiary through repossession, PROVIDED FURTHER, that foreclosure or lien proceeding and existing at the time of such renewalthe repossession, extension foreclosure, or refunding and after giving effect thereto, no Default or Event of Default would exist.
like proceeding; (cxiii) Any Person which becomes a Subsidiary after the date hereof shall for all purposes of this Section 10.4 be deemed to have created, assumed or incurred at the time it becomes a Subsidiary all Funded Debt of such Person existing immediately after it becomes a Subsidiary.
(d) The Company shall not effect or permit any change in or amendment to (i) the terms by which any Subordinated Indebtedness purports to be subordinated to the payment and performance Liens on deposits of the Notes Corporation or a Restricted Subsidiary with banks (ii) the terms relating to the repayment of any Subordinated Indebtedness (other than any extensions of the date of payment therefor or any reductions in the amount thereof or in the rate at which interest or other fees are payable to the holders thereof in connection therewith).
(e) The Company shall aggregate, not directly or indirectly make any payment of any principal of or any redemption, retirement, defeasance or repurchase, in whole or in part, of any Subordinated Indebtedness or pledge any collateral therefor, except payments required by the instruments evidencing such Subordinated Indebtedness and the pledge of collateral as permitted by Section 10.5(gexceeding $50 million), PROVIDED that nothing shall preclude the Company from permitting the conversion of any Subordinated Indebtedness to equity by exercise of warrants or otherwise (in accordance with its terms)customary banking practice, in connection with the providing by the Corporation or a Restricted Subsidiary of financial accommodations to any Person in the ordinary course of business; or (xiv) any extension, renewal, refunding or replacement of the foregoing.
Appears in 1 contract
Limitations on Funded Debt. (a) The Company will notFor so long as any Notes issued pursuant to this Third Supplemental Indenture are Outstanding, and the Corporation will not permit any Restricted Subsidiary toto incur, create, assumeissue, guarantee or otherwise incur or in any manner become liable in respect of create any Funded DebtDebt unless, except:
(i) Funded Debt evidenced by the Notes;
(ii) Funded Debt of the Company and its Subsidiaries outstanding as of the date of the Closing and described in Schedule 5.15;
(iii) Funded Debt of the Company to UAM Trademark, PROVIDED that such Funded Debt is evidenced by a promissory note or notes which are subordinated to all obligations of the Company to the holders of the Notes under this Agreement, the Notes and the Security Documents in form and substance satisfactory to the Required Holders and which promissory note or notes have been delivered to the Collateral Agent, duly endorsed to the Collateral Agent, for the ratable benefit of the Secured Parties;
(iv) Guaranties by the Company's Subsidiaries of Funded Debt of the Company, which Guaranties have been entered into pursuant to the terms and provisions and upon the conditions set forth in the Security Documents, the Bank Credit Agreement and this Agreement;
(v) additional Funded Debt of the Company and/or any one or more of its Subsidiaries, PROVIDED that at the time of creation, issuance, assumption, guarantee or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof:
(A) Consolidated Operating Cash Flow for the immediately preceding four fiscal quarters will be at least equal to 22.5% of Consolidated Senior Funded Debt and to 17.5% of Consolidated Funded Debt, in each such case outstanding on the last day of each of such four fiscal quarters, and
(B) in the case of the issuance of any Funded Debt of the Company secured by Liens permitted by Section 10.5(k) and any Funded Debt of a Subsidiarythereto, the sum of (y) the aggregate amount of all Funded Debt secured by Liens permitted by Section 10.5(k) PLUS (z) the aggregate amount of all outstanding Funded Debt of Subsidiaries, shall the Restricted Subsidiaries would not exceed an amount equal to 15% of Consolidated Net Tangible Net Worth;
(vi) Assets. The limitation on Funded Debt will not apply to, and there will be excluded from Funded Debt in any computation under such restriction, Funded Debt secured by: (i) Liens on real or physical property of any corporation existing at the time such corporation becomes a Subsidiary to the Company Subsidiary; (ii) Liens on real or to a Substantially-Owned Subsidiary.
(b) Indebtedness issued or incurred in accordance with the limitations of Section 10.4(a) may be renewed, extended or refunded, PROVIDED, that any increase in principal amount remaining unpaid physical property existing at the time of acquisition thereof incurred within 180 days of the time of acquisition thereof (including, without limitation, acquisition through merger or consolidation) by the Corporation or any Restricted Subsidiary; (iii) Liens on real or physical property thereafter acquired (or constructed) by the Corporation or any Restricted Subsidiary and created prior to, at the time of, or within 270 days after such renewalacquisition (including, extension without limitation, acquisition through merger or refunding consolidation) (or the completion of such construction or commencement of commercial operation of such property, whichever is later) to secure or provide for the payment of all or any part of the purchase price (or the construction price) thereof; (iv) Liens in favor of the Corporation or any Restricted Subsidiary; (v) Liens in favor of the United States of America, any State thereof or the District of Columbia, or any agency, department or other instrumentality thereof, to secure partial, progress, advance or other payments pursuant to any contract or provisions of any statute, (vi) Liens incurred or assumed in connection with the issuance of revenue bonds the interest on which is exempt from Federal Income taxation pursuant to Section 103 (b) of the Internal Revenue Code of 1954, as amended; (vii) Liens securing the performance of any contract or undertaking not directly or indirectly in connection with the borrowing of money, the obtaining of advances or credit or the securing of Funded Debt, if made and continuing in the ordinary course of business; (viii) Liens incurred (no matter when created) in connection with the Corporation's or a Restricted Subsidiary's engaging in leveraged or single-investor lease transaction; provided, however, that the instrument creating or evidencing any borrowings secured by such Lien will provide that such borrowings are payable solely out of the income and proceeds of the property subject to such Lien and are not a general obligation of the Corporation or such Restricted Subsidiary; (ix) Liens under workers' compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts or deposits to secure public or statutory obligations of the Corporation or any Restricted Subsidiary, or deposits of cash or obligations of the United States of America to secure surety, repletion and appeal bonds to which the Corporation or any Restricted Subsidiary is a party or in lieu of such bonds, or pledges or deposits for similar purposes in the ordinary course of business, or Liens imposed by law, such as laborers' or other employees', carriers', warehousemen's, mechanics', materialmen's and vendors' Liens and Liens arising out of judgments or awards against the Corporation or any Restricted Subsidiary with respect to which the Corporation or such Restricted Subsidiary at the time shall be prosecuting an appeal or proceedings for review and with respect to which it shall have secured a stay of execution pending such appeal or proceedings for review, or Liens for taxes not yet subject to penalties for nonpayment or the amount or validity of which is being in good faith contested by appropriate proceedings by the Corporation or any Restricted Subsidiary, as the case may be, or minor survey exceptions, minor encumbrances, easement or reservations of, or rights of others for, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions or Liens as the use of real properties which Liens, exceptions, encumbrances, easements, reservations, rights and restrictions do not, in the opinion of the Corporation, in the aggregate materially detract from the value of said properties or materially impair their use in the operation of the business of the Corporation and its Restricted Subsidiaries; (x) Liens incurred to finance construction, alteration or repair of any real or physical property and improvements thereto prior to or within 270 days after completion of such construction, alteration or repair; (xi) Liens incurred (no matter when created) in connection with a Securitization Transaction; (xii) Liens on property (or any Receivable arising in connection with the limitations of Section 10.4(a)(v)lease thereof) acquired by the Corporation or a Restricted Subsidiary through repossession, PROVIDED FURTHER, that foreclosure or lien proceeding and existing at the time of such renewalthe repossession, extension foreclosure, or refunding and after giving effect thereto, no Default or Event of Default would exist.
like proceeding; (cxiii) Any Person which becomes a Subsidiary after the date hereof shall for all purposes of this Section 10.4 be deemed to have created, assumed or incurred at the time it becomes a Subsidiary all Funded Debt of such Person existing immediately after it becomes a Subsidiary.
(d) The Company shall not effect or permit any change in or amendment to (i) the terms by which any Subordinated Indebtedness purports to be subordinated to the payment and performance Liens on deposits of the Notes Corporation or a Restricted Security with banks (ii) the terms relating to the repayment of any Subordinated Indebtedness (other than any extensions of the date of payment therefor or any reductions in the amount thereof or in the rate at which interest or other fees are payable to the holders thereof in connection therewith).
(e) The Company shall aggregate, not directly or indirectly make any payment of any principal of or any redemption, retirement, defeasance or repurchase, in whole or in part, of any Subordinated Indebtedness or pledge any collateral therefor, except payments required by the instruments evidencing such Subordinated Indebtedness and the pledge of collateral as permitted by Section 10.5(gexceeding $50 million), PROVIDED that nothing shall preclude the Company from permitting the conversion of any Subordinated Indebtedness to equity by exercise of warrants or otherwise (in accordance with its terms)customary banking practice, in connection with the providing by the Corporation or a Restricted Subsidiary of financial accommodations to any Person in the ordinary course of business; or (xiv) any extension, renewal, refunding or replacement of the foregoing.
Appears in 1 contract
Samples: Third Supplemental Indenture (Norfolk Southern Corp)
Limitations on Funded Debt. (a) The Company will notFor so long as any Notes issued pursuant to this Tenth Supplemental Indenture are Outstanding, and the Corporation will not permit any Restricted Subsidiary toto incur, create, assumeissue, guarantee or otherwise incur or in any manner become liable in respect of create any Funded DebtDebt unless, except:
(i) Funded Debt evidenced by the Notes;
(ii) Funded Debt of the Company and its Subsidiaries outstanding as of the date of the Closing and described in Schedule 5.15;
(iii) Funded Debt of the Company to UAM Trademark, PROVIDED that such Funded Debt is evidenced by a promissory note or notes which are subordinated to all obligations of the Company to the holders of the Notes under this Agreement, the Notes and the Security Documents in form and substance satisfactory to the Required Holders and which promissory note or notes have been delivered to the Collateral Agent, duly endorsed to the Collateral Agent, for the ratable benefit of the Secured Parties;
(iv) Guaranties by the Company's Subsidiaries of Funded Debt of the Company, which Guaranties have been entered into pursuant to the terms and provisions and upon the conditions set forth in the Security Documents, the Bank Credit Agreement and this Agreement;
(v) additional Funded Debt of the Company and/or any one or more of its Subsidiaries, PROVIDED that at the time of creation, issuance, assumption, guarantee or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof:
(A) Consolidated Operating Cash Flow for the immediately preceding four fiscal quarters will be at least equal to 22.5% of Consolidated Senior Funded Debt and to 17.5% of Consolidated Funded Debt, in each such case outstanding on the last day of each of such four fiscal quarters, and
(B) in the case of the issuance of any Funded Debt of the Company secured by Liens permitted by Section 10.5(k) and any Funded Debt of a Subsidiarythereto, the sum of (y) the aggregate amount of all Funded Debt secured by Liens permitted by Section 10.5(k) PLUS (z) the aggregate amount of all outstanding Funded Debt of Subsidiaries, shall the Restricted Subsidiaries would not exceed an amount equal to 15% of Consolidated Net Tangible Net Worth;
(vi) Assets. This Section 302 shall not apply to, and there shall be excluded from Funded Debt in any computation hereto, Funded Debt secured by: (i) Liens on real or physical property of any corporation existing at the time such corporation becomes a Subsidiary to the Company Subsidiary; (ii) Liens on real or to a Substantially-Owned Subsidiary.
(b) Indebtedness issued or incurred in accordance with the limitations of Section 10.4(a) may be renewed, extended or refunded, PROVIDED, that any increase in principal amount remaining unpaid physical property existing at the time of acquisition thereof incurred within 180 days of the time of acquisition thereof (including, without limitation, acquisition through merger or consolidation) by the Corporation or any Restricted Subsidiary; (iii) Liens on real or physical property thereafter acquired (or constructed) by the Corporation or any Restricted Subsidiary and created prior to, at the time of, or within 270 days after such renewalacquisition (including, extension without limitation, acquisition through merger or refunding consolidation) (or the completion of such construction or commencement of commercial operation of such property, whichever is later) to secure or provide for the payment of all or any part of the purchase price (or the construction price) thereof; (iv) Liens in favor of the Corporation or any Restricted Subsidiary; (v) Liens in favor of the United States of America, any State thereof or the District of Columbia, or any agency, department or other instrumentality thereof, to secure partial, progress, advance or other payments pursuant to any contract or provisions of any statute, (vi) Liens incurred or assumed in connection with the issuance of revenue bonds the interest on which is exempt from Federal Income taxation pursuant to Section 103(b) of the Internal Revenue Code of 1954, as amended; (vii) Liens securing the performance of any contract or undertaking not directly or indirectly in connection with the borrowing of money, the obtaining of advances or credit or the securing of Funded Debt, if made and continuing in the ordinary course of business; (viii) Liens incurred (no matter when created) in connection with the Corporation's or a Restricted Subsidiary's engaging in leveraged or single-investor lease transaction; provided, however, that the instrument creating or evidencing any borrowings secured by such Lien will provide that such borrowings are payable solely out of the income and proceeds of the property subject to such Lien and are not a general obligation of the Corporation or such Restricted Subsidiary; (ix) Liens under workers' compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts or deposits to secure public or statutory obligations of the Corporation or any Restricted Subsidiary, or deposits of cash or obligations of the United States of America to secure surety, repletion and appeal bonds to which the Corporation or any Restricted Subsidiary is a party or in lieu of such bonds, or pledges or deposits for similar purposes in the ordinary course of business, or Liens imposed by law, such as laborers' or other employees', carriers', warehousemen's, mechanics', materialmen's and vendors' Liens and Liens arising out of judgments or awards against the Corporation or any Restricted Subsidiary with respect to which the Corporation or such Restricted Subsidiary at the time shall be prosecuting an appeal or proceedings for review and with respect to which it shall have secured a stay of execution pending such appeal or proceedings for review, or Liens for taxes not yet subject to penalties for nonpayment or the amount or validity of which is being in good faith contested by appropriate proceedings by the Corporation or any Restricted Subsidiary, as the case may be, or minor survey exceptions, minor encumbrances, easement or reservations of, or rights of others for, rights of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions or Liens on the use of real properties which Liens, exceptions, encumbrances, easements, reservations, rights and restrictions do not, in the opinion of the Corporation, in the aggregate materially detract from the value of said properties or materially impair their use in the operation of the business of the Corporation and its Restricted Subsidiaries; (x) Liens incurred to finance construction, alteration or repair of any real or physical property and improvements thereto prior to or within 270 days after completion of such construction, alteration or repair; (xi) Liens incurred (no matter when created) in connection with a Securitization Transaction; (xii) Liens on property (or any Receivable arising in connection with the limitations of Section 10.4(a)(v)lease thereof) acquired by the Corporation or a Restricted Subsidiary through repossession, PROVIDED FURTHER, that foreclosure or liens proceeding and existing at the time of such renewalthe repossession, extension foreclosure, or refunding and after giving effect thereto, no Default or Event of Default would exist.
like proceeding; (cxiii) Any Person which becomes a Subsidiary after the date hereof shall for all purposes of this Section 10.4 be deemed to have created, assumed or incurred at the time it becomes a Subsidiary all Funded Debt of such Person existing immediately after it becomes a Subsidiary.
(d) The Company shall not effect or permit any change in or amendment to (i) the terms by which any Subordinated Indebtedness purports to be subordinated to the payment and performance Liens on deposits of the Notes Corporation or a Restricted Subsidiary with banks (ii) the terms relating to the repayment of any Subordinated Indebtedness (other than any extensions of the date of payment therefor or any reductions in the amount thereof or in the rate at which interest or other fees are payable to the holders thereof in connection therewith).
(e) The Company shall aggregate, not directly or indirectly make any payment of any principal of or any redemption, retirement, defeasance or repurchase, in whole or in part, of any Subordinated Indebtedness or pledge any collateral therefor, except payments required by the instruments evidencing such Subordinated Indebtedness and the pledge of collateral as permitted by Section 10.5(gexceeding $50 million), PROVIDED that nothing shall preclude the Company from permitting the conversion of any Subordinated Indebtedness to equity by exercise of warrants or otherwise (in accordance with its terms)customary banking practice, in connection with the providing by the Corporation or a Restricted Subsidiary of financial accommodations to any Person in the ordinary course of business; or (xiv) any extension, renewal, refunding or replacement of the foregoing.
Appears in 1 contract
Samples: Tenth Supplemental Indenture (Norfolk Southern Corp)
Limitations on Funded Debt. (a) The Company will notFor so long as any Notes issued pursuant to this Eleventh Supplemental Indenture are Outstanding, and the Corporation will not permit any Restricted Subsidiary toto incur, create, assumeissue, guarantee or otherwise incur or in any manner become liable in respect of create any Funded DebtDebt unless, except:
(i) Funded Debt evidenced by the Notes;
(ii) Funded Debt of the Company and its Subsidiaries outstanding as of the date of the Closing and described in Schedule 5.15;
(iii) Funded Debt of the Company to UAM Trademark, PROVIDED that such Funded Debt is evidenced by a promissory note or notes which are subordinated to all obligations of the Company to the holders of the Notes under this Agreement, the Notes and the Security Documents in form and substance satisfactory to the Required Holders and which promissory note or notes have been delivered to the Collateral Agent, duly endorsed to the Collateral Agent, for the ratable benefit of the Secured Parties;
(iv) Guaranties by the Company's Subsidiaries of Funded Debt of the Company, which Guaranties have been entered into pursuant to the terms and provisions and upon the conditions set forth in the Security Documents, the Bank Credit Agreement and this Agreement;
(v) additional Funded Debt of the Company and/or any one or more of its Subsidiaries, PROVIDED that at the time of creation, issuance, assumption, guarantee or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof:
(A) Consolidated Operating Cash Flow for the immediately preceding four fiscal quarters will be at least equal to 22.5% of Consolidated Senior Funded Debt and to 17.5% of Consolidated Funded Debt, in each such case outstanding on the last day of each of such four fiscal quarters, and
(B) in the case of the issuance of any Funded Debt of the Company secured by Liens permitted by Section 10.5(k) and any Funded Debt of a Subsidiarythereto, the sum of (y) the aggregate amount of all Funded Debt secured by Liens permitted by Section 10.5(k) PLUS (z) the aggregate amount of all outstanding Funded Debt of Subsidiaries, shall the Restricted Subsidiaries would not exceed an amount equal to 15% of Consolidated Net Tangible Net Worth;
(vi) Assets. This Section 302 shall not apply to, and there shall be excluded from Funded Debt in any computation hereto, Funded Debt secured by: (i) Liens on real or physical property of any corporation existing at the time such corporation becomes a Subsidiary to the Company Subsidiary; (ii) Liens on real or to a Substantially-Owned Subsidiary.
(b) Indebtedness issued or incurred in accordance with the limitations of Section 10.4(a) may be renewed, extended or refunded, PROVIDED, that any increase in principal amount remaining unpaid physical property existing at the time of acquisition thereof incurred within 180 days of the time of acquisition thereof (including, without limitation, acquisition through merger or consolidation) by the Corporation or any Restricted Subsidiary; (iii) Liens on real or physical property thereafter acquired (or constructed) by the Corporation or any Restricted Subsidiary and created prior to, at the time of, or within 270 days after such renewalacquisition (including, extension without limitation, acquisition through merger or refunding consolidation) (or the completion of such construction or commencement of commercial operation of such property, whichever is later) to secure or provide for the payment of all or any part of the purchase price (or the construction price) thereof; (iv) Liens in favor of the Corporation or any Restricted Subsidiary; (v) Liens in favor of the United States of America, any State thereof or the District of Columbia, or any agency, department or other instrumentality thereof, to secure partial, progress, advance or other payments pursuant to any contract or provisions of any statute, (vi) Liens incurred or assumed in connection with the issuance of revenue bonds the interest on which is exempt from Federal Income taxation pursuant to Section 103(b) of the Internal Revenue Code of 1954, as amended; (vii) Liens securing the performance of any contract or undertaking not directly or indirectly in connection with the borrowing of money, the obtaining of advances or credit or the securing of Funded Debt, if made and continuing in the ordinary course of business; (viii) Liens incurred (no matter when created) in connection with the Corporation's or a Restricted Subsidiary's engaging in leveraged or single-investor lease transaction; provided, however, that the instrument creating or evidencing any borrowings secured by such Lien will provide that such borrowings are payable solely out of the income and proceeds of the property subject to such Lien and are not a general obligation of the Corporation or such Restricted Subsidiary; (ix) Liens under workers' compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts or deposits to secure public or statutory obligations of the Corporation or any Restricted Subsidiary, or deposits of cash or obligations of the United States of America to secure surety, repletion and appeal bonds to which the Corporation or any Restricted Subsidiary is a party or in lieu of such bonds, or pledges or deposits for similar purposes in the ordinary course of business, or Liens imposed by law, such as laborers' or other employees', carriers', warehousemen's, mechanics', materialmen's and vendors' Liens and Liens arising out of judgments or awards against the Corporation or any Restricted Subsidiary with respect to which the Corporation or such Restricted Subsidiary at the time shall be prosecuting an appeal or proceedings for review and with respect to which it shall have secured a stay of execution pending such appeal or proceedings for review, or Liens for taxes not yet subject to penalties for nonpayment or the amount or validity of which is being in good faith contested by appropriate proceedings by the Corporation or any Restricted Subsidiary, as the case may be, or minor survey exceptions, minor encumbrances, easement or reservations of, or rights of others for, rights of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions or Liens on the use of real properties which Liens, exceptions, encumbrances, easements, reservations, rights and restrictions do not, in the opinion of the Corporation, in the aggregate materially detract from the value of said properties or materially impair their use in the operation of the business of the Corporation and its Restricted Subsidiaries; (x) Liens incurred to finance construction, alteration or repair of any real or physical property and improvements thereto prior to or within 270 days after completion of such construction, alteration or repair; (xi) Liens incurred (no matter when created) in connection with a Securitization Transaction; (xii) Liens on property (or any Receivable arising in connection with the limitations of Section 10.4(a)(v)lease thereof) acquired by the Corporation or a Restricted Subsidiary through repossession, PROVIDED FURTHER, that foreclosure or liens proceeding and existing at the time of such renewalthe repossession, extension foreclosure, or refunding and after giving effect thereto, no Default or Event of Default would exist.
like proceeding; (cxiii) Any Person which becomes a Subsidiary after the date hereof shall for all purposes of this Section 10.4 be deemed to have created, assumed or incurred at the time it becomes a Subsidiary all Funded Debt of such Person existing immediately after it becomes a Subsidiary.
(d) The Company shall not effect or permit any change in or amendment to (i) the terms by which any Subordinated Indebtedness purports to be subordinated to the payment and performance Liens on deposits of the Notes Corporation or a Restricted Subsidiary with banks (ii) the terms relating to the repayment of any Subordinated Indebtedness (other than any extensions of the date of payment therefor or any reductions in the amount thereof or in the rate at which interest or other fees are payable to the holders thereof in connection therewith).
(e) The Company shall aggregate, not directly or indirectly make any payment of any principal of or any redemption, retirement, defeasance or repurchase, in whole or in part, of any Subordinated Indebtedness or pledge any collateral therefor, except payments required by the instruments evidencing such Subordinated Indebtedness and the pledge of collateral as permitted by Section 10.5(gexceeding $50 million), PROVIDED that nothing shall preclude the Company from permitting the conversion of any Subordinated Indebtedness to equity by exercise of warrants or otherwise (in accordance with its terms)customary banking practice, in connection with the providing by the Corporation or a Restricted Subsidiary of financial accommodations to any Person in the ordinary course of business; or (xiv) any extension, renewal, refunding or replacement of the foregoing.
Appears in 1 contract
Limitations on Funded Debt. (a) The Company will notFor so long as any Notes issued pursuant to this Second Supplemental Indenture are Outstanding, and the Corporation will not permit any Restricted Subsidiary toto incur, create, assumeissue, guarantee or otherwise incur or in any manner become liable in respect of create any Funded DebtDebt unless, except:
(i) Funded Debt evidenced by the Notes;
(ii) Funded Debt of the Company and its Subsidiaries outstanding as of the date of the Closing and described in Schedule 5.15;
(iii) Funded Debt of the Company to UAM Trademark, PROVIDED that such Funded Debt is evidenced by a promissory note or notes which are subordinated to all obligations of the Company to the holders of the Notes under this Agreement, the Notes and the Security Documents in form and substance satisfactory to the Required Holders and which promissory note or notes have been delivered to the Collateral Agent, duly endorsed to the Collateral Agent, for the ratable benefit of the Secured Parties;
(iv) Guaranties by the Company's Subsidiaries of Funded Debt of the Company, which Guaranties have been entered into pursuant to the terms and provisions and upon the conditions set forth in the Security Documents, the Bank Credit Agreement and this Agreement;
(v) additional Funded Debt of the Company and/or any one or more of its Subsidiaries, PROVIDED that at the time of creation, issuance, assumption, guarantee or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof:
(A) Consolidated Operating Cash Flow for the immediately preceding four fiscal quarters will be at least equal to 22.5% of Consolidated Senior Funded Debt and to 17.5% of Consolidated Funded Debt, in each such case outstanding on the last day of each of such four fiscal quarters, and
(B) in the case of the issuance of any Funded Debt of the Company secured by Liens permitted by Section 10.5(k) and any Funded Debt of a Subsidiarythereto, the sum of (y) the aggregate amount of all Funded Debt secured by Liens permitted by Section 10.5(k) PLUS (z) the aggregate amount of all outstanding Funded Debt of Subsidiaries, shall the Restricted Subsidiaries would not exceed an amount equal to 15% of Consolidated Net Tangible Net Worth;
(vi) Assets. The limitation on Funded Debt will not apply to, and there will be excluded from Funded Debt in any computation under such restriction, Funded Debt secured by: (i) Liens on real or physical property of any corporation existing at the time such corporation becomes a Subsidiary to the Company Subsidiary; (ii) Liens on real or to a Substantially-Owned Subsidiary.
(b) Indebtedness issued or incurred in accordance with the limitations of Section 10.4(a) may be renewed, extended or refunded, PROVIDED, that any increase in principal amount remaining unpaid physical property existing at the time of acquisition thereof incurred within 180 days of the time of acquisition thereof (including, without limitation, acquisition through merger or consolidation) by the Corporation or any Restricted Subsidiary; (iii) Liens on real or physical property thereafter acquired (or constructed) by the Corporation or any Restricted Subsidiary and created prior to, at the time of, or within 270 days after such renewalacquisition (including, extension without limitation, acquisition through merger or refunding consolidation) (or the completion of such construction or commencement of commercial operation of such property, whichever is later) to secure or provide for the payment of all or any part of the purchase price (or the construction price) thereof; (iv) Liens in favor of the Corporation or any Restricted Subsidiary; (v) Liens in favor of the United States of America, any State thereof or the District of Columbia, or any agency, department or other instrumentality thereof, to secure partial, progress, advance or other payments pursuant to any contract or provisions of any statute, (vi) Liens incurred or assumed in connection with the issuance of revenue bonds the interest on which is exempt from Federal Income taxation pursuant to Section 103(b) of the Internal Revenue Code of 1954, as amended; (vii) Liens securing the performance of any contract or undertaking not directly or indirectly in connection with the borrowing of money, the obtaining of advances or credit or the securing of Funded Debt, if made and continuing in the ordinary course of business; (viii) Liens incurred (no matter when created) in connection with the Corporation's or a Restricted Subsidiary's engaging in leveraged or single-investor lease transaction; provided, however, that the instrument creating or evidencing any borrowings secured by such Lien will provide that such borrowings are payable solely out of the income and proceeds of the property subject to such Lien and are not a general obligation of the Corporation or such Restricted Subsidiary; (ix) Liens under workers' compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts or deposits to secure public or statutory obligations of the Corporation or any Restricted Subsidiary, or deposits of cash or obligations of the United States of America to secure surety, repletion and appeal bonds to which the Corporation or any Restricted Subsidiary is a party or in lieu of such bonds, or pledges or deposits for similar purposes in the ordinary course of business, or Liens imposed by law, such as laborers' or other employees', carriers', warehousemen's, mechanics', materialmen's and vendors' Liens and Liens arising out of judgments or awards against the Corporation or any Restricted Subsidiary with respect to which the Corporation or such Restricted Subsidiary at the time shall be prosecuting an appeal or proceedings for review and with respect to which it shall have secured a stay of execution pending such appeal or proceedings for review, or Liens for taxes not yet subject to penalties for nonpayment or the amount or validity of which is being in good faith contested by appropriate proceedings by the Corporation or any Restricted Subsidiary, as the case may be, or minor survey exceptions, minor encumbrances, easement or reservations of, or rights of others for, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions or Liens as the use of real properties which Liens, exceptions, encumbrances, easements, reservations, rights and restrictions do not, in the opinion of the Corporation, in the aggregate materially detract from the value of said properties or materially impair their use in the operation of the business of the Corporation and its Restricted Subsidiaries; (x) Liens incurred to finance construction, alteration or repair of any real or physical property and improvements thereto prior to or within 270 days after completion of such construction, alteration or repair; (xi) Liens incurred (no matter when created) in connection with a Securitization Transaction; (xii) Liens on property (or any Receivable arising in connection with the limitations of Section 10.4(a)(v)lease thereof) acquired by the Corporation or a Restricted Subsidiary through repossession, PROVIDED FURTHER, that foreclosure or liens proceeding and existing at the time of such renewalthe repossession, extension foreclosure, or refunding and after giving effect thereto, no Default or Event of Default would exist.
like proceeding; (cxiii) Any Person which becomes a Subsidiary after the date hereof shall for all purposes of this Section 10.4 be deemed to have created, assumed or incurred at the time it becomes a Subsidiary all Funded Debt of such Person existing immediately after it becomes a Subsidiary.
(d) The Company shall not effect or permit any change in or amendment to (i) the terms by which any Subordinated Indebtedness purports to be subordinated to the payment and performance Liens on deposits of the Notes Corporation or a Restricted Security with banks (ii) the terms relating to the repayment of any Subordinated Indebtedness (other than any extensions of the date of payment therefor or any reductions in the amount thereof or in the rate at which interest or other fees are payable to the holders thereof in connection therewith).
(e) The Company shall aggregate, not directly or indirectly make any payment of any principal of or any redemption, retirement, defeasance or repurchase, in whole or in part, of any Subordinated Indebtedness or pledge any collateral therefor, except payments required by the instruments evidencing such Subordinated Indebtedness and the pledge of collateral as permitted by Section 10.5(gexceeding $50 million), PROVIDED that nothing shall preclude the Company from permitting the conversion of any Subordinated Indebtedness to equity by exercise of warrants or otherwise (in accordance with its terms)customary banking practice, in connection with the providing by the Corporation or a Restricted Subsidiary of financial accommodations to any Person in the ordinary course of business; or (xiv) any extension, renewal, refunding or replacement of the foregoing.
Appears in 1 contract
Samples: Second Supplemental Indenture (Norfolk Southern Corp)
Limitations on Funded Debt. (a) The Company will notFor so long as any Notes issued pursuant to this Sixth Supplemental Indenture are Outstanding, and will the Corporation shall not permit any Restricted Subsidiary toto incur, create, assumeissue, guarantee or otherwise incur or in any manner become liable in respect of create any Funded DebtDebt unless, except:
(i) Funded Debt evidenced by the Notes;
(ii) Funded Debt of the Company and its Subsidiaries outstanding as of the date of the Closing and described in Schedule 5.15;
(iii) Funded Debt of the Company to UAM Trademark, PROVIDED that such Funded Debt is evidenced by a promissory note or notes which are subordinated to all obligations of the Company to the holders of the Notes under this Agreement, the Notes and the Security Documents in form and substance satisfactory to the Required Holders and which promissory note or notes have been delivered to the Collateral Agent, duly endorsed to the Collateral Agent, for the ratable benefit of the Secured Parties;
(iv) Guaranties by the Company's Subsidiaries of Funded Debt of the Company, which Guaranties have been entered into pursuant to the terms and provisions and upon the conditions set forth in the Security Documents, the Bank Credit Agreement and this Agreement;
(v) additional Funded Debt of the Company and/or any one or more of its Subsidiaries, PROVIDED that at the time of creation, issuance, assumption, guarantee or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof:
(A) Consolidated Operating Cash Flow for the immediately preceding four fiscal quarters will be at least equal to 22.5% of Consolidated Senior Funded Debt and to 17.5% of Consolidated Funded Debt, in each such case outstanding on the last day of each of such four fiscal quarters, and
(B) in the case of the issuance of any Funded Debt of the Company secured by Liens permitted by Section 10.5(k) and any Funded Debt of a Subsidiarythereto, the sum of (y) the aggregate amount of all Funded Debt secured by Liens permitted by Section 10.5(k) PLUS (z) the aggregate amount of all outstanding Funded Debt of Subsidiaries, shall the Restricted Subsidiaries would not exceed an amount equal to 15% of Consolidated Net Tangible Net Worth;
(vi) Assets. This Section 302 shall not apply to, and there shall be excluded from Funded Debt in any computation pursuant hereto, Funded Debt secured by: (i) Liens on real or physical property of any corporation existing at the time such corporation becomes a Subsidiary to the Company Subsidiary; (ii) Liens on real or to a Substantially-Owned Subsidiary.
(b) Indebtedness issued or incurred in accordance with the limitations of Section 10.4(a) may be renewed, extended or refunded, PROVIDED, that any increase in principal amount remaining unpaid physical property existing at the time of acquisition thereof incurred within 180 days of the time of acquisition thereof (including, without limitation, acquisition through merger or consolidation) by the Corporation or any Restricted Subsidiary; (iii) Liens on real or physical property thereafter acquired (or constructed) by the Corporation or any Restricted Subsidiary and created prior to, at the time of, or within 270 days after such renewalacquisition (including, extension without limitation, acquisition through merger or refunding consolidation) (or the completion of such construction or commencement of commercial operation of such property, whichever is later) to secure or provide for the payment of all or any part of the purchase price (or the construction price) thereof; (iv) Liens in favor of the Corporation or any Restricted Subsidiary; (v) Liens in favor of the United States of America, any State thereof or the District of Columbia, or any agency, department or other instrumentality thereof, to secure partial, progress, advance or other payments pursuant to any contract or the provisions of any statute, (vi) Liens incurred or assumed in connection with the issuance of revenue bonds the interest on which is exempt from federal income taxation pursuant to Section 103 (b) of the Internal Revenue Code of 1954, as amended; (vii) Liens securing the performance of any contract or undertaking not directly or indirectly in connection with the borrowing of money, the obtaining of advances or credit or the securing of Funded Debt, if made and continuing in the ordinary course of business; (viii) Liens incurred (no matter when created) in connection with the Corporation's or a Restricted Subsidiary's engaging in a leveraged or single-investor lease transaction; provided, however, that the instrument creating or evidencing any borrowings secured by such Lien will provide that such borrowings are payable solely out of the income and proceeds of the property subject to such Lien and are not a general obligation of the Corporation or such Restricted Subsidiary; (ix) Liens under workers' compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts or deposits to secure public or statutory obligations of the Corporation or any Restricted Subsidiary, or deposits of cash or obligations of the United States of America to secure surety, repletion and appeal bonds to which the Corporation or any Restricted Subsidiary is a party or in lieu of such bonds, or pledges or deposits for similar purposes in the ordinary course of business, or Liens imposed by law, such as laborers' or other employees', carriers', warehousemen's, mechanics', materialmen's and vendors' Liens and Liens arising out of judgments or awards against the Corporation or any Restricted Subsidiary with respect to which the Corporation or such Restricted Subsidiary at the time shall be prosecuting an appeal or proceedings for review and with respect to which it shall have secured a stay of execution pending such appeal or proceedings for review, or Liens for taxes not yet subject to penalties for nonpayment or the amount or validity of which is being in good faith contested by appropriate proceedings by the Corporation or any Restricted Subsidiary, as the case may be, or minor survey exceptions, minor encumbrances, easement or reservations of, or rights of others for, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions or Liens on the use of real properties which Liens, exceptions, encumbrances, easements, reservations, rights and restrictions do not, in the opinion of the Corporation, in the aggregate materially detract from the value of said properties or materially impair their use in the operation of the business of the Corporation and its Restricted Subsidiaries; (x) Liens incurred to finance construction, alteration or repair of any real or physical property and improvements thereto prior to or within 270 days after completion of such construction, alteration or repair; (xi) Liens incurred (no matter when created) in connection with a Securitization Transaction; (xii) Liens on property (or any Receivable arising in connection with the limitations of Section 10.4(a)(v)lease thereof) acquired by the Corporation or a Restricted Subsidiary through repossession, PROVIDED FURTHER, that foreclosure or lien proceeding and existing at the time of such renewalthe repossession, extension foreclosure, or refunding and after giving effect thereto, no Default or Event of Default would exist.
like proceeding; (cxiii) Any Person which becomes a Subsidiary after the date hereof shall for all purposes of this Section 10.4 be deemed to have created, assumed or incurred at the time it becomes a Subsidiary all Funded Debt of such Person existing immediately after it becomes a Subsidiary.
(d) The Company shall not effect or permit any change in or amendment to (i) the terms by which any Subordinated Indebtedness purports to be subordinated to the payment and performance Liens on deposits of the Notes Corporation or a Restricted Subsidiary with banks (ii) the terms relating to the repayment of any Subordinated Indebtedness (other than any extensions of the date of payment therefor or any reductions in the amount thereof or in the rate at which interest or other fees are payable to the holders thereof in connection therewith).
(e) The Company shall aggregate, not directly or indirectly make any payment of any principal of or any redemption, retirement, defeasance or repurchase, in whole or in part, of any Subordinated Indebtedness or pledge any collateral therefor, except payments required by the instruments evidencing such Subordinated Indebtedness and the pledge of collateral as permitted by Section 10.5(gexceeding $50 million), PROVIDED that nothing shall preclude the Company from permitting the conversion of any Subordinated Indebtedness to equity by exercise of warrants or otherwise (in accordance with its terms)customary banking practice, in connection with the providing by the Corporation or a Restricted Subsidiary of financial accommodations to any Person in the ordinary course of business; or (xiv) any extension, renewal, refunding or replacement of the foregoing.
Appears in 1 contract
Limitations on Funded Debt. (a) The Company will not, and will not permit any Subsidiary to, create, issue, assume, guarantee or otherwise incur or in any manner be or become liable in respect of any Funded Debt, except:
(i) Funded Debt evidenced by the Notes;
; (ii) Funded Debt of the Company and its Subsidiaries outstanding as of the date of the Closing and described in on Schedule 5.15;
5.15 hereto, and any extension, renewal, replacement, refinancing or refunding of any such Funded Debt; provided that (iii1) Funded Debt such extension, renewal, replacement, refinancing or refunding of the Company to UAM Trademark, PROVIDED that such Funded Debt is evidenced by a promissory note shall be without increase in the principal amount thereof at the time of such extension, renewal, replacement, refinancing or notes which are subordinated to all obligations of the Company refunding (except to the holders extent that any additional amounts incurred thereunder are permitted by the provisions of Section 10.2(a)(iii)), (2) in the Notes under this Agreementcase of secured Funded Debt, the Notes and the Security Documents in form and substance satisfactory related Lien shall attach solely to the Required Holders and which promissory note or notes have been delivered to same such property, (3) in the Collateral Agent, duly endorsed to the Collateral Agent, for the ratable benefit of the Secured Parties;
(iv) Guaranties by the Company's Subsidiaries case of Funded Debt secured by any Lien described in Section 10.3(m), such Lien shall have been discharged on or prior to October 18, 2001, and (4) at the time of such extension, renewal, replacement, refinancing or refunding and after giving effect thereto and to the application of the Companyproceeds thereof, which Guaranties have been entered into pursuant to the terms and provisions and upon the conditions set forth in the Security Documents, the Bank Credit Agreement and this Agreement;
no Default or Event of Default would exist; (viii) additional Funded Debt of the Company and/or any one or more of and its Subsidiaries, PROVIDED provided that at the time of creation, issuance, assumption, guarantee or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof:
(A1) Consolidated Operating Cash Flow for the immediately preceding four fiscal quarters will be at least equal to 22.5Funded Debt shall not exceed 55% of Consolidated Senior Funded Debt Total Capitalization, and to 17.5% of Consolidated Funded Debt, in each such case outstanding on the last day of each of such four fiscal quarters, and
(B2) in the case of the issuance of any Funded Debt of the Company secured by Liens permitted by Section 10.5(k10.3(n) and any Funded Debt of a Subsidiary, Subsidiary the sum of (y) the aggregate amount of all Funded Debt secured by Liens permitted by Section 10.5(k) PLUS (z1) the aggregate amount of all Funded Debt of Subsidiaries, the Company secured by Liens permitted by Section 10.3(n) plus (2) the aggregate amount of all Funded Debt of Subsidiaries (other than the Subsidiary Guaranty and any Funded Debt of a Subsidiary of the Company evidenced by a Guaranty and relating to Debt of the Company owing under the Bank Credit Agreement) shall not exceed 15% of Consolidated Tangible Net Worth;
; and (viiv) Funded Debt of a Subsidiary to the Company or to a SubstantiallyWholly-Owned owned Subsidiary.
(b) Indebtedness issued or incurred in accordance with the limitations of Section 10.4(a) may be renewed, extended or refunded, PROVIDED, that any increase in principal amount remaining unpaid at the time of such The renewal, extension or refunding shall be within the limitations of Section 10.4(a)(v)extension, PROVIDED FURTHERreplacement, that at the time of such renewal, extension or refunding and after giving effect thereto, no Default or Event of Default would exist.refinancing or
(c) Any Person which becomes a Subsidiary after the date hereof shall for all purposes of this Section 10.4 10.2 be deemed to have created, assumed or incurred at the time it becomes a Subsidiary all Funded Debt of such Person existing immediately after it becomes a Subsidiary. .
(d) The Company shall not effect or permit any change in or amendment to (i) the terms by which any Subordinated Indebtedness purports to be subordinated to the payment and performance of the Notes or (ii) the terms relating to the repayment of any Subordinated Indebtedness (other than any extensions of the date of payment therefor or any reductions in the amount thereof or in the rate at which interest or other fees are payable to the holders thereof in connection therewith).
(e) The Company shall not directly or indirectly make any payment of any principal of or any redemption, retirement, defeasance or repurchase, in whole or in part, of any Subordinated Indebtedness or pledge any collateral therefor, except payments required by the instruments evidencing such Subordinated Indebtedness and the pledge of collateral as permitted by Section 10.5(g), PROVIDED that nothing shall preclude the Company from permitting the conversion of any Subordinated Indebtedness to equity by exercise of warrants or otherwise (in accordance with its terms).
Appears in 1 contract
Samples: Note Purchase Agreement (Kemet Corp)
