Limitations on Incurrence of Additional Indebtedness. Each Borrower covenants that it will not incur any additional Indebtedness, except as follows: (a) Additional Indebtedness in an aggregate stated principal amount for the Borrower and BAG Holdings not to exceed $40,000,000, which may be Additional Parity Indebtedness (subject to an Intercreditor Agreement entered into and meeting the requirements of Section 8.3 of the Indenture), if prior to the date of incurrence of such Additional Indebtedness there is delivered to the Trustee a Certificate of the Borrower Representative certifying that (I) the Borrowers on a consolidated basis with BAG Holdings have maintained a Debt Service Coverage Ratio of not less than 2.00 to 1.00 as of the last day of the most recently ended fiscal quarter for the period consisting of the four consecutive quarters ending on such day if based on unaudited consolidated financial statements of the Borrowers on a consolidated basis with BAG Holdings, and as of the last day of the Fiscal Year if based on audited financial statements, and (II) the Borrowers on a consolidated basis with BAG Holdings have maintained a ratio of net debt (calculated by subtracting the Borrowers’ on a consolidated basis with BAG Holdings’ total cash and cash equivalents from its total short-term and long-term Indebtedness) to earnings before interest, taxes, depreciation, and amortization (EBITDA) of less than 4.00 to 1.00 as of the last day of the most recently ended fiscal quarter for the period consisting of the four consecutive quarters ending on such day, if based on unaudited consolidated financial statements of the Borrowers on a consolidated basis with BAG Holdings, and as of the last day of the Fiscal Year if based on audited financial statements. (b) Liabilities (other than for borrowed money and other than rents payable under lease agreements) incurred in the regular course of operations; (c) Reimbursement and other obligations arising under reimbursement agreements relating to letter of credit or similar credit facilities used to secure or provide liquidity in connection with Indebtedness; (d) Contractual liabilities for which money is available; and (e) Liabilities for contributions to self-insurance programs.
Appears in 1 contract
Limitations on Incurrence of Additional Indebtedness. Each Borrower covenants (a) The Company agrees that it will shall not incur any additional IndebtednessAdditional Indebtedness without meeting the financial tests set forth in (b) below; provided that, except as follows:
otherwise provided in this Agreement, at the time of incurrence thereof no Event of Default (aor event which with notice or lapse of time, or both; would constitute an Event of Default) Additional Indebtedness in an aggregate stated principal amount for the Borrower under this Agreement shall have occurred and BAG Holdings not to exceed $40,000,000, which may shall be Additional Parity Indebtedness (subject to an Intercreditor Agreement entered into and meeting the requirements of Section 8.3 of the Indenture), if prior to the date of continuing unless such event will be cured upon incurrence of such Additional Indebtedness there is delivered to the Trustee a Certificate and application of the Borrower Representative certifying proceeds thereof and the placing in service of any facilities financed thereby; and provided, further, that (I) this requirement concerning no Event of Default shall not apply to Indebtedness incurred with the Borrowers on a consolidated basis with BAG Holdings have maintained a Debt Service Coverage Ratio of not less than 2.00 to 1.00 as consent of the last day of the most recently ended fiscal quarter for the period consisting of the four consecutive quarters ending on such day if based on unaudited consolidated financial statements of the Borrowers on a consolidated basis with BAG Holdings, and as of the last day of the Fiscal Year if based on audited financial statements, and (II) the Borrowers on a consolidated basis with BAG Holdings have maintained a ratio of net debt (calculated by subtracting the Borrowers’ on a consolidated basis with BAG Holdings’ total cash and cash equivalents from its total short-term and long-term Indebtedness) to earnings before interest, taxes, depreciation, and amortization (EBITDA) of less than 4.00 to 1.00 as of the last day of the most recently ended fiscal quarter for the period consisting of the four consecutive quarters ending on such day, if based on unaudited consolidated financial statements of the Borrowers on a consolidated basis with BAG Holdings, and as of the last day of the Fiscal Year if based on audited financial statementsBond Insurer.
(b) Liabilities Prior to incurrence of any Indebtedness, the Company shall deliver to the Trustee an Officer's Certificate certifying the Debt Service Coverage Ratio and Capitalization Ratio for the Historic Test Period, taking into account the aggregate of (other i) the current aggregate Outstanding principal amount of all existing Indebtedness to be Outstanding after the issuance of the proposed Additional Indebtedness and (ii) the proposed Additional Indebtedness, is not less than for borrowed money 2.0 times and other than rents payable under lease agreements) 65%, respectively. For the purpose of computing such Debt Service Coverage Ratio, the amount of Annual Debt Service on the proposed Additional Indebtedness shall be the amount of scheduled principal and interest to be paid thereon from the date of incurrence thereof to the end of the then Fiscal Year. For the purpose of computing Debt Service Coverage Ratio on any Additional Indebtedness to be incurred in as Variable Rate Indebtedness, the regular course amount of operations;
(c) Reimbursement Annual Debt Service on such Variable Rate Indebtedness shall be deemed to be the average interest rate on such Variable Rate Indebtedness had it been outstanding and other obligations arising under reimbursement agreements relating calculated during the 12 months prior to letter of credit or similar credit facilities used to secure or provide liquidity in connection with Indebtedness;
(d) Contractual liabilities for which money is available; and
(e) Liabilities for contributions to self-insurance programsits incurrence.
Appears in 1 contract
Samples: Loan and Trust Agreement (Southern California Water Co)
Limitations on Incurrence of Additional Indebtedness. Each Borrower covenants that it will not incur any additional Indebtedness, except as follows:
(a) Additional Indebtedness in an aggregate stated principal amount The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume, guarantee, acquire, become liable, contingently or otherwise, with respect to or otherwise become responsible for the Borrower and BAG Holdings not to exceed $40,000,000payment of (collectively, which may be Additional Parity “incur”) any Indebtedness (subject including Acquired Indebtedness) and the Company will not permit any of its Restricted Subsidiaries to an Intercreditor Agreement entered into issue any Preferred Stock; provided, however, that the Company or any Restricted Subsidiary may incur Indebtedness and meeting the requirements of Section 8.3 of the Indenture), any Restricted Subsidiary may issue Preferred Stock if prior to on the date of the incurrence of such Additional Indebtedness there is delivered or issuance of Preferred Stock, after giving effect to the Trustee a Certificate of incurrence or issuance thereof, the Borrower Representative certifying that (I) the Borrowers on a consolidated basis with BAG Holdings have maintained a Debt Service Fixed Charge Coverage Ratio of not less the Company would have been greater than 2.00 2.0 to 1.00 as of the last day of the most recently ended fiscal quarter for the period consisting of the four consecutive quarters ending on such day if based on unaudited consolidated financial statements of the Borrowers on a consolidated basis with BAG Holdings, and as of the last day of the Fiscal Year if based on audited financial statements, and (II) the Borrowers on a consolidated basis with BAG Holdings have maintained a ratio of net debt (calculated by subtracting the Borrowers’ on a consolidated basis with BAG Holdings’ total cash and cash equivalents from its total short-term and long-term Indebtedness) to earnings before interest, taxes, depreciation, and amortization (EBITDA) of less than 4.00 to 1.00 as of the last day of the most recently ended fiscal quarter for the period consisting of the four consecutive quarters ending on such day, if based on unaudited consolidated financial statements of the Borrowers on a consolidated basis with BAG Holdings, and as of the last day of the Fiscal Year if based on audited financial statements1.0.
(b) Liabilities Notwithstanding clause (a) of this Section 4.09, the Company and its Restricted Subsidiaries may incur, without duplication, any of the following items of Indebtedness (“Permitted Indebtedness”):
(1) Indebtedness of the Company or any Restricted Subsidiary under any Credit Facility in an aggregate principal amount at any one time outstanding not to exceed $50.0 million less, without duplication, any permanent repayment of any term loan thereunder, if any, and any permanent reduction in revolving loan commitments thereunder, in each case, from the proceeds of one or more Asset Sales which are used after the Issue Date to repay a Credit Facility;
(2) other Indebtedness of the Company or any Restricted Subsidiary arising from the Plan of Reorganization and other Indebtedness of the Company and its Restricted Subsidiaries outstanding on the Issue Date (other than for borrowed money and other than rents payable Indebtedness under lease agreements) incurred in the regular course of operationsABL Facility Agreement);
(c3) Reimbursement and other obligations arising Indebtedness under reimbursement agreements relating to letter the Notes issued on the Issue Date, Indebtedness under PIK Notes, any accrual of credit additional principal amount of any Notes or similar credit facilities used to secure or provide liquidity PIK Notes in connection lieu of paying interest in the form of PIK Notes thereon, and, in each case, the Guarantees, if any, with Indebtednessrespect thereto;
(d4) Contractual liabilities the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capitalized Lease Obligations and Purchase Money Indebtedness, in each case, (A) subject to the approval by the Company’s Board of Directors, (B) incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement of property, plant or equipment used in the business of the Company or any of its Restricted Subsidiaries, and (C) in an aggregate principal amount, including all Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this Section 4.09(b)(4), not to exceed $5.0 million;
(5) the incurrence by the Company or any of its Restricted Subsidiaries of Refinancing Indebtedness in exchange for, or the net proceeds of which money are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a), 4.09(b)(3), 4.09(b)(4), 4.09(b)(5) or 4.09(b)(12);
(6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that:
(A) if the Company or any Guarantor is availablethe obligor on such Indebtedness and the payee is not the Company or a Guarantor, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor; and
(eB) Liabilities for contributions (i) any subsequent issuance or transfer of Capital Stock that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary of the Company, will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this Section 4.09(b)(6);
(7) the issuance by any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of shares of Preferred Stock; provided, however, that:
(A) any subsequent issuance or transfer of Capital Stock that results in any such Preferred Stock being held by a Person other than the Company or a Restricted Subsidiary of the Company; and
(B) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Restricted Subsidiary of the Company, will be deemed, in each case, to constitute an issuance of such Preferred Stock by such Restricted Subsidiary that was not permitted by this Section 4.09(b)(7);
(8) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business;
(9) the guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company to the extent that the guaranteed Indebtedness was permitted to be incurred by another provision of this covenant; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the guarantee must be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(10) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Indebtedness in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(2);
(11) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of workers’ compensation claims, self-insurance programsobligations, bankers’ acceptances, performance and surety bonds in the ordinary course of business;
(12) any obligation arising from agreements of the Company providing for indemnification, adjustment of purchase price, earn outs or similar obligations, in each case, incurred or assumed in connection with the disposition or acquisition of any business, assets or Capital Stock of a Restricted Subsidiary in a transaction permitted by this Indenture; provided that such obligation is not reflected as a liability on the face of the balance sheet of the Company or any Restricted Subsidiary;
(13) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within five Business Days; and
(14) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this Section 4.09(b)(14), not to exceed $10.0 million. For purposes of determining compliance with Section 4.09, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (1) through (14) above or is entitled to be incurred pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a), the Company shall, in its sole discretion, classify (or later reclassify) such item of Indebtedness in any manner that complies with Section 4.09; provided that Indebtedness under the ABL Facility Agreement which is in existence on or prior to the Issue Date, and any renewals, extensions, refundings, refinancing or replacements thereof, will be deemed to have been incurred on such date under clause (1), and the Company will not be permitted to reclassify any portion of such Indebtedness thereafter. Accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Capital Stock in the form of additional shares of the same class of Disqualified Capital Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Capital Stock for purposes of Section 4.09. In addition, for purposes of determining any particular amount of Indebtedness under Section 4.09, guarantees, Liens or letter of credit obligations supporting Indebtedness otherwise included in the determination of such particular amount shall not be included so long as incurred by a Person that could have incurred such Indebtedness. Subject to the preceding paragraph, any Indebtedness incurred under any Credit Facility pursuant to clause (1) shall be deemed for purposes of Section 4.09 to have been incurred on the date such Indebtedness was first incurred until such Indebtedness is actually repaid, other than pursuant to “cash sweep” provisions or any similar provisions under any Credit Facility that provide that such Indebtedness is deemed to be repaid daily (or other periodically).
Appears in 1 contract
Samples: Indenture (Hi-Crush Inc.)
Limitations on Incurrence of Additional Indebtedness. Each Borrower covenants that it will not incur any additional Indebtedness, except as follows:
(a) Additional Indebtedness in an aggregate stated principal amount for the Borrower and BAG Holdings not to exceed $40,000,000, which may be Additional Parity Indebtedness (subject to an Intercreditor Agreement entered into and meeting the requirements of Section 8.3 of the Indenture), if prior to the date of incurrence of such Additional Indebtedness there is delivered to the Trustee a Certificate of the Borrower Representative certifying that (I) the Borrowers on a consolidated basis with BAG Holdings have maintained a Debt Service Coverage Ratio of not less than 2.00 to 1.00 as of the last day of the most recently ended fiscal quarter for the period consisting of the four consecutive quarters ending on such day if based on unaudited consolidated financial statements of the Borrowers on a consolidated basis with BAG Holdings, and as of the last day of the Fiscal Year if based on audited financial statements, and (II) the Borrowers on a consolidated basis with BAG Holdings have maintained a ratio of net debt (calculated by subtracting the Borrowers’ on a consolidated basis with BAG Holdings’ total cash and cash equivalents from its total short-term and long-term Indebtedness) to earnings before interest, taxes, depreciation, and amortization (EBITDA) of less than 4.00 to 1.00 as of the last day of the most recently ended fiscal quarter for the period consisting of the four consecutive quarters ending on such day, if based on unaudited consolidated financial statements of the Borrowers on a consolidated basis with BAG Holdings, and as of the last day of the Fiscal Year if based on audited financial statements.
(b) Liabilities (other than for borrowed money and other than rents payable under lease agreements) incurred in the regular course of operations;
(c) Reimbursement and other obligations arising under reimbursement agreements relating to letter of credit or similar credit facilities used to secure or provide liquidity in connection with Indebtedness;
(d) Contractual liabilities for which money is available; and
(e) Liabilities for contributions to self-insurance programs.
(f) Additional Parity Indebtedness in the form of a loan from the County to the Borrowers of the proceeds from the sale of a third series of the Bonds (the “Series 2022B Bonds”), proceeds of which shall be used to complete the Taxable Series 2022 Improvements, provided that the following conditions are met:
(1) The original aggregate principal amount of the Series 2022 Bonds and the Series 2022B Bonds shall not exceed $160,000,000;
(2) The Series 2022B Bonds shall be sold pursuant to Purchase Contract by and among the County, the Borrowers and X.X. Xxxxxxxx & Co., as representative for the underwriters, no later than 60 days after the Date of Issuance of the Series 2022 Bonds;
(3) The Series 2022B Bonds shall be sold on the same terms as the Series 2022 Bonds, and any terms (including but not limited to price, coupon, and redemption provisions) of the Series 2022B Bonds that are more favorable to the holders of the Series 2022B Bonds than to the holders of the Series 2022 Bonds, shall inure to the benefit of the Series 2022 Bonds, by amendments or supplements to the Indenture, this Agreement and the other Financing Documents, as applicable;
(4) The Series 2022B Bonds shall not be purchased, traded or put on the balance sheet of X.X. Xxxxxxxx & Co., any other broker dealer or any banking institution;
(5) The Series 2022B Bonds shall not be purchased or held by BAG Holdings or any affiliate or subsidiary of BAG Holdings;
(6) The Series 2022B Bonds shall not be transferred by any holder thereof during the six month period beginning on the Date of Issuance of the Series 2022B Bonds; and
(7) Prior to the issuance of the Series 2022B Bonds, the Borrower Representative shall provide to the Trustee a certificate of an Independent Municipal Finance Consultant certifying that (a) the proposed terms of the Series 2022B Bonds are same terms as the Series 2022 Bonds prior to the issuance of the Series 2022B Bonds, or (b) certain proposed terms of the Series 2022B Bonds are more favorable to the purchasers thereof than the terms of the Series 2022 Bonds, with such certification identifying such terms. In the event such certificate identifies terms of the Series 2022B Bonds that are more favorable to the purchasers thereof than the terms of the Series 2022 Bonds, any and all amendments to Financing Documents necessary to satisfy Section 8.10(e)(3) above shall be a condition precedent to the issuance of the Series 2022B Bonds.
Appears in 1 contract
